THE 


Law  of  Crimes. 


By  JOHN  WILDER   MAY, 

CHIEF  JUSTICE  OF  THE   MUNICIPAL  COURT,   AND  LATE  PROSECUTING 
OFFICER    FOR    BOSTON. 


BOSTON: 

LITTLE,   BROWN,   AND   COMPANY. 

1881. 


T 

M 


Copyright,  1880, 
By  John  Wilder  Mat. 
3332- 2_3 


University  Press  : 
John  Wilson  and  Son,  Cambridge. 


PREFACE. 


In  the  following  pages  the  author  has  endeavored 
to  state  briefly  the  general  principles  underlying 
the  Criminal  Law,  and  to  define  the  several  common- 
law  crimes,  and  such  statutory  crimes  —  mala  in  se, 
and  not  merely  mala  prohibita  or  police  regulations1 
—  as  may  be  said  to  be  common  statute  crimes. 

The  brevity  of  this  treatise  did  not  admit  of  a 
history  of  what  the  law  has  been,  nor  a  discussion  of 
what  it  ought  to  be ;  but  only  a  statement  of  what  it 
is.  In  the  cases  cited  will  be  found  ample  learning 
upon  the  first  of  these  points.  Digressions  upon  the 
second  would  be  out  of  place  in  a  book  designed  as 
a  lawyer's  and  student's  hand-book. 

The  alphabetical  arrangement  has  been  adopted  in 
the  second  chapter,  as,  on  the  whole,  more  convenient 
for  the  practising  lawyer.  The  student,  however, 
will  perhaps  find  it  to  his  advantage,  on  first  peru- 

1  On  the  question  of  the  limitation  of  this  power  of  police  regu- 
lation, see  2  Kent's  Com.  840;  Com.  v.  Alger,  7  Cush.  (Mass.)  63; 
Thorp  v.  R.  &  B.  Railroad  Co.,  27  Vt.  149 ;  Slaughter-House  Cases, 
16  Wall.  (U.  S.)  36. 


IV  PREFACE. 

sal,  instead  of  reading  consecutively,  to  pursue  the 
more  scientific  method  of  grouping  the  titles  ;  taking 
first,  for  instance,  crimes  against  the  person,  —  as 
Assault,  Homicide,  and  the  other  crimes  where  force 
applied  to  the  person  is  a  leading  characteristic ;  then 
crimes  against  property,  —  as  Larceny,  Embezzle- 
ment, Cheating,  False  Pretences,  and  the  like,  where 
fraud  is  a  leading  characteristic ;  to  be  followed  by 
Robbery,  Burglary,  Arson,  Malicious  Mischief;  and 
concluding  with  such  crimes  as  militate  against  the 
public  peace,  safety,  morals,  good  order,  and  policy, 
—  as  Nuisances  generally,  Treason,  Blasphemy,  Libel, 
Adultery,  and  the  like. 

If  the  author  has  succeeded  in  his  design,  the  prac- 
tising lawyer  may  readily  find  within  the  compass 
of  these  few  pages  the  law  which  he  seeks,  and  the 
authorities  in  its  support. 

J.  W.  M. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

PAGE 

Of    the    Definition    of    Crime,    and    of    certain 
General  Principles  applicable   thereto  ...        1 


CHAPTER  II. 
Of  Particular  Crimes 48 


TABLE  OF  CASES. 


Adams  v.  People 
Alexander  v.  State 
Allen  v.  State 
Ambrose  v.  State 
Amour  v.  State  . 
Anderson  t;.  Com. 
Ann  v.  State  .     . 
Anonymous    .     . 
Antelope,  The    . 
Arden  v.  State    . 
Ashbrook  v.  Com. 
Ashburn  v.  State 
Atkinson  v.  State 
Att'y-General  v.  Stewart 


B. 


SECTION 

31,41 
36,74 
.  74 
.      40 


86,  126 

.  139 

.  206 

.  191 

.  187 

.  183 

.  184 

.  131 

.  182 


Baalam  v.  State  .  . 
Baden  v.  State  .  . 
Baker  v.  People  .  . 
v.  State  .  . 
Balkom  v.  State 
Barker  v.  Com.  .  . 
Barnes  v.  State  .  . 
Barratry,  Case  of  . 
Barronet,  Ex  parte  . 
Barthelemy  v.  People 
Bass  v.  State  .  .  . 
Bayard  v.  McLean  . 
Beauchamp  v.  Morris 
Bell  v.  Mallory  .  . 
v.  State  .  .  . 
Benedict  v.  Cowden 

v.  Hart 
Bennett  v.  State 
Bentinck  v.  Franklin 
Beverley's  Case .     . 
Biles  v.  Com. .    .    . 
Binney  v.  State  .    . 


106 

67 

150 

69 

182 

5 

66 

6,  10 

171 

36 

66 

119 

204 

168 

124 

118 

38 

66 

21 

124 

6 


SECTION 

Bird  v.  Jones 59, 106 

Bishop  v.  State 30 

Biswell  v.  Com 20 

Blackburn  v.  State  16,  29, 129, 193 

Blake  v.  Barnard    ....  60 

Bloomer  v.  People  ....  207 

Bloss  v.  Tobey 61 

Blower  v.  State 106 

Bodwell  v.  Osgood  ....  173 

Boggus  v.  State 67 

Bohannon  v.  Com.  .     .     .    63,  143 

Bollman,  Ex  parte  ....  213 

Bowles  v.  State 138 

Bowman  v.  Blythe  ....  105 

Boyce  v.  People      ....  209 

Branch  v.  State 178 

Breese  v.  State  ...    30,  35,  73 

Britt  v.  State 207 

Brittain  v.  Bank  of  London  123 

v.  State      ....  169 

Brown  v.  Union  Ins.  Co. .     .  65 

Bryam  v.  State 40 

Buckland  v.  Com 123 

Burr's  Trial 81 

Burrow  v.  State 108 

Burton  v.  State 60  % 

Buster  v.  Newkirk  ....  161 


Calder  v.  State  .     .     . 

.      39 

Campbell  v.  Jones  .     . 

.     176 

Carmichael  v.  State     . 

.      67 

Carpenter  v.  People     . 

.      44 

v.  State  .     . 

.     1 B6 

Carr  b.  Hood  .... 

.     173 

Carroll  v.  State  .     .     . 

63,  137 

Carrotti  v.  State      .     . 

.      46 

Carwile  v.  State      .     . 

47 

Cash  v.  State      .     .     . 

.      47 

VLL1 


TABLE  OF  CASES. 


Caulkins  v.  Whistler  . 

.     124 

Commonwealth  v.  Calef  .    .    170 

Caton  v.  Stewart     .     . 

.      69 

v.  Carey .     .     136 

Chamberlain  v.  People 

.     187 

v.  Catlin      .     169 

Cliamper  v.  State    .     . 

56,61 

v.  Chace      .     161 

Chapman  v.  State   .     . 

.     162 

v.  Chapman         2 

Charlton's  Case  .     .    . 

.      92 

v.  Clair  .     .      40 

Cherry's  Case     .     .     . 

.     149 

v.  Clap    .     .     170 

Chick  v.  State     .     .     . 

.     147 

v.  Coe       109,  121 

Child  17.  Affleck  .     .     . 

.     173 

v.  Colberg   56,  61 

Chittenden  *;.  Brady    . 

.    .      92 

v.  Collins     ,     154 

Choice  v.  State  .     .    . 

.      19 

v.  Cony  .     .     105 

City  of  Louisville  v.  Rou 

pe .     104 

v.  Cook  .   44,  187 

Clark  v.  Binney      .     . 

.     173 

v.  Cornish   .     187 

v.  State     .     .     . 

.     194 

v.  Costley    .     138 

Clarke's  Case     .     .     . 

.      93 

v.  Crosby    .    202 

Cleaveland  v.  State 

.     105 

v.  Culver     .     170 

Clem  v.  State       .     .     . 

.      35 

v.  Darwin    .      40 

Clement  v.  Chivis  .     . 

.     170 

v.  Davis  .     66,  96 

Clifford  v.  Brandon 

86,  204 

v.  Deerfield      183 

Coats  v.  People  .    .    . 

.      98 

v.  Demain  .      45 

Cobel  v.  People  .     .     . 

.      45 

v.  Dennie    .     105 

Cockayne  v.  Hodgkinson 

.     173 

v.  Dennis     .      29 

Codd's  Case   .... 

.    171 

v.  Dimond  .     165 

Coffman  v.  Com.     .     . 

.     142 

v.  Doane      .     159 

Colbert  v.  State  .     .    .     . 

.     113 

v.  Dougherty    56 

Collom  v.  State  .    .     .     . 

.      30 

v.  Douglass     189 

Comb  v.  Pitt  .... 

.      69 

v.  Downing       36 

Commonwealth  v.  Andrei 

Y8        197 

v.  Drew    107,  113 

v.  Bagley 

.    105 

v.  Drum      .     143 

v.  Baldwi 

n  .     123 

v.  Dudley    .     118 

v.  Barge 

.      38 

v.  Ford    .     .      62 

v.  Barlow 

27,39 

v.  Foster     .      99 

v.  Barnej 

-    •      50 

v.  Fox     .     .     139 

v.  Barry 

41,  56, 

v.  Glover     36,  80 

96,  149 

v.  Goddard  .      38 

v.  Beama 

n  .    161 

v.  Goodenough 

v.  Bean  . 

.    196 

125 

v.  Beldin 

z  .        6 

v.  Grant      .     188 

v.  Berry 

"  96,  152 

v.  Green      13,  40, 

v.  Bigelo 

T  .     119 

154,  193 

v.  Blackb 

urn     87 

v.  Hackett  7,  138 

v,  Blandii 

lg      171 

v.  Hardiman      40 

v.  Boston 

.     182 

v.  Hartnett      121 

v.  Boswoi 

-th       36 

v.  Haskell   .      41 

v.  Bowen 

.     128 

v.  Hatfield  .     187 

v.  Boynto 

n     6, 6, 

v.  Hawkins        20 

36,82 

v.  Henry  108,  112 

v.  Bradfoi 

d        11 

v.  Hershberger 

v.  Brady 

.     187 

203 

v.  Brewer 

.    209 

v.  Holland  .    205 

v.  Brown 

78,  153 

v.  Holms    14,  170 

v.  Burke 

56,  195 

v.  Hudson   .        6 

v.  Butler 

.      14 

v.  Humphries  205 

TABLE  OF  CASES. 


IX 


Commonwealth  v.  Hunt  .    . 

85 

Commonwealth  r.  Piper  .     .        2 

v.  Johns  .    . 

163 

v.  Pollard  184, 18'J 

v.  Judd   .    . 

86 

v.  Pomeroy  17, 19 

v.  Keeper    . 

118 

v.  Proprietors,  &c. 

v.  King    .  97,  19G 

15 

v.  Kingsbury     87 

v.  Putnam  .      67 

v.  Kneeland 

68, 

v.  Randall   .  7,  56 

170 

v.  Ray     .  32,  121 

v.  Knight     . 

187 

v.  Ridge  way      87 

v.  Knolton  . 

44 

v.  Roby  .     .  8,  40 

v.  Knowlton 

209 

v.  Rogers     16,  18 

v.  Ladd  .    . 

125 

v.  Runnels  .    204 

v.  Lancaster 

111 

v.  Rush  .     .     182 

v.  Lane  .    . 

67 

v.  Sampson      160 

v.  Lanigan  . 

13 

v.  Sanderson    171 

v.  Lester 

166 

v.  Sankey    .     124 

v.  Libby 

99 

v.  Sayre  .     .      19 

v.  Loud  .    . 

40 

v.  Sharpless     170 

v.  Lovett     . 

95 

v.  Shattuck      118 

v.  Luckis     . 

149 

v.  Shaw    149,  160 

v.  Macloon  . 

41 

v.  Sheriff     .     201 

t;.  Marsh 

67 

v.  Smith   31,  166, 

v.  Mason 

156 

184 

v.  McAfee  56, 124 

v.  Snelling  .    203 

v.  McAtee  . 

32 

v.  Snow  .     .    210 

v.  McCullock    66 

v.  Speer  .    .      82 

v.  McDonald   194 

v.  Squires    .     126 

v.  McLoon  . 

196 

v.  Stearns    .      99 

v.  McShane 

40 

v.  Stebbins  .    156 

v.  Meade 

13 

v.  Stephenson    72 

v.  Merrill    . 

111 

v.  Stevenson    125 

r.  Miller.     . 

202 

v.  Stockley      187 

v.  Mink  .    . 

29 

v.  Stratton  .      56 

v.  Mitchell 

105 

v.  Strupney       72 

v.  Moreland 

197 

v.  Swift  Run,  &c. 

v.  Morris     . 

171 

15 

v.  Mosler    1 

7,  136 

v.  Thomas      193, 

v.  Mulliollar 

id  125 

210 

v.  Mycall     . 

124 

v.  Thompson  140, 

v.  Neal    .    . 

14 

187 

v.  Newell 

27,81 

v.  Titus  .    .     150 

v.  Nickerson 

106 

v.  Tobin .     .     188 

v.  Norton     . 

113 

v.  Tubbs      .       66 

v.  Odell  .     . 

170 

v.  Tuck  .     .       20 

v.  O'Hara    . 

163 

v.  Tucker    .      53 

v.  O'Malley 

154 

v.  Tuckerman   99 

v.  Ordway 

57 

v.  Uprichard      41 

v.  Pa.  Canal 

Co. 

v.  Upton      .     183 

39 

v.  Van  Sickle  183 

v.  Parker    S 

8,45, 

r.  Vaoghao       -10 

6 

1,108 

v.  Waite      .        5 

r.  Pearce 

105 

v.  Walden   .    178 

v.  Pickering 

186 

v.  Warren  82,  106 

TABLE   OF  CASES. 


Commonwealth  v.  Webster 


7,8, 
130 

v.  Whitcomb  111 

v.  White  41,  59, 
159 

i\  Whitehead 

v.  Wilgus    . 

v.  Williams 


v.  Wood . 
v.  Wright 
v.  Wyman 
v.  York 
v.  Young 


Cook  v.  People 

v.  State 
Coomb's  Case     .    . 
Cooper  v.  Greeley  . 

v.  Slade  .     . 

v.  Stone .    . 
Cornwell  v.  State    . 
Cothrun  v.  State 
Coward  v.  Wellington 
Cowen  v.  People 
Croghan  v.  State     . 
Crozier  v.  People     . 
Cunningham  v.  People 
Curry  v.  Walter      .     . 


D. 


39 


29 
108 
80, 
178 

45 
170 

99 
132 


209 
,  46,  126 
.  122 
.  170 
.  69 
.  170 
.  23 
.  187 
.  173 
.  113 
194,  209 
.  209 
.  122 
.    173 


Danforth  v.  Streeter    ...      66 
Danville,  &c.  R.  R.  Co.  v.  Com.  182 


Darby,  Matter  of 
Darling  v.  Williams 
Davis  v.  State 

v.  Whittredg 
Davis's  Case  . 
Dawes  v.  State 
Dawley  v.  State 
De  Bouillon  v.  People 
Defrese  v.  State . 
Delaney,  Ex  parte 
Delaware  Canal  Co 
Dillard  v.  State 
Dinkey  v.  Com. 
Dishon  v.  Smith 
Doanv.  State 
Don  Moran  v.  People 
Donnally's  Case 
Douglas  v.  State 
Duncan  v.  Com. 


92 

.  .  143 

.  .  211 

.  .  118 

.  .  206 

.  .  133 

.  .  36 

.  .  170 

.  .  154 

.  43,  53 

Com.  15 

.  .  169 

.  .  209 

.  .  69 

.  .  35 

.  .  194 

.  .  207 

.  .  183 

.  .  61 


Duncan  v.  State   ....  178 

Dunn  v.  People 45 

Durham  v.  People  ....   40 


E. 

Eckels  v.  State   .    . 
Edward's  Case   .     . 
Elliot  v.  McClelland 
Ellis  v.  State  .     .     . 
Elsmore  v.  St.  Briacels 
Emmott  v.  Lyne 
Empson  v.  Bathurst 
Ennis  v.  State     .     . 
Erwin  v.  State    .     . 
Estes  v.  Cartin    .     . 
Evans  v.  People 
Evers  v.  People  .    . 


149 
82 
66 
183 
52 
58 
105 
153 
142 
70 
45,  128 
.      62 


Fairman  v.  Ives  . 
Farell  v.  People  . 
Farrer  v.  State   . 
Farwell  v.  State 
Fay  v.  Com.   .     . 
Felix  v.  State 
Felton  v.  United  States 
Fennell  v.  State  . 
Ferguson  v.  State 
Ferris  v.  People 
Fifty  Associates  v.  Howland 
Fisher  v.  Com.    , 
v.  State    . 
Fisherman's  Case 
Fizele  v.  State     . 
Flanagan  v.  People 

v.  State 
Fletcher  v.  People 
Flynn  v.  State     . 
Fouville  v.  McNease 
Fowler  v.  State  . 
Fox  v.  Ohio    .     . 
Fralick  v.  People 
France  v.  State  . 
Frank  v.  State    . 
Frazer  v.  People 
Freeman  v.  People 
Fulghaui  v.  State 


173 

154 

19 

70 

114 

136 

178 

211 

89 

40 

118 

40 

78 

208 

195 

16,20 

135 

106 

165 

172 

169 

41,94 

135 

77 

89 

45 

16 

56 


TABLE   OF  CASES. 


XI 


G. 

( iallagher  v.  State 
(ialvin  v.  State  . 
Gardner  v.  State 
Gathercole's  Case 
Gibbs  v.  Dewey . 
Gibson  v.  State  . 
Giles  v.  State 
Godfrey  v.  I'eople 
Goforth  v.  State. 
Golden  v.  State  . 
Goodspeed  v.  Fuller 
Gorman  v.  State 
Gosha  v.  State    . 
Gower  v.  No  well 
Greenough,  In  re 
Gregory  v.  Hill  . 
Griffin  v.  State    . 
Guenther  v.  State 
Gunn  v.  State 


H. 

Habersham  v.  State 
Hadden  v.  People  . 
Hall  v.  State  .  .  . 
Hamilton  v.  State  , 
v.  People 
v.  Eegina 
Harman's  Case  . 
Harrison  v.  People 
Hart  V.  Albany  . 
Hartung  v.  State 
Hawkins  v.  State 
Hayes  v.  People . 
Hays  v.  People  . 
Hazen  v.  Coin.  . 
Hedley,  Ex  parte 
Henderson  v.  State 
Hendrix  v.  State 
Henslow  v.  Faucett 
lliscott's  Case  . 
Eigginbotham  o.  State 
Hildebrand  v.  People 
Hill  v.  State  .  .  . 
Hines  v.  State  .  . 
Hitchcock  v.  Baker 
Hodges  v.  State  .  • 
Holly  v.  State  .  . 
Holmes  v.  Com.  .  . 
Holsou  v.  State  .    . 


62 

187 

66 

170 

103 

187 

170 

180 

178 

56 

66 

56 

195 

176 

113 

118 

29 

40 

134 


201 
147 
158 
157 

36 
109 
206 
149 
183 

39 

47 

67 
61,  195 

87 
100 
123 

63 

69 
105 

55 
154 
82,  181 

40 
201 
172 
134 

31 
178 


Hood  v.  State     •    .     . 

.     187 

Hooker  v.  Com.  .     .     . 

.      62 

Hopps  v.  People      .     . 

.       17 

Hoskins  t;.  Tarrance    . 

.    160 

Housli  v.  People  .     .     . 

.    201 

Hughes  ».  Com.      .    . 

.    207 

Humphrey  v.  State 

19,23 

Hunt  v.  Adams  .     .     . 

.     122 

Hurd  j\  People  .     .     .     . 

.     143 

Hutchinson  v.  Com. 

.     160 

Hyatt  v.  Wood    .     .    . 

.     118 

Jackson  v.  State 

.  40, 

160 

Jackson's  Case   .     . 

189 

Jesse  v.  State      .     . 

187 

Johns  v.  State     .     . 

41 

Johnson  v.  State 

'  108, 

156 

v   Thompson 

57 

v.  Tompkins 

. 

68 

v.  Wideman 

92 

Jones  v.  Com.      .     . 

'.  22, 

131 

v.  State     .     . 

.   83, 

113 

Judge  King's  Charge 

203 

K. 

Kane  v.  Hibernian  Ins.  Co 
Kee  v.  State    .     . 
Keeler  v.  State    .     , 
Kelley  v.  State   . 
Key  v.  Vattier    . 
King,  Charge  of  Judge. 
King  v.  Lake .     .     , 
Kirland  v.  State  . 
Kline  v.  Rickets 
Klum  v.  State     .     , 
Knox  v.  New  York  City 


.  36 
.  138 
2 
.  20 
66,  176 
.  203 
.  170 
.  67 
.  118 
.  47 
.    182 


L. 

Lambert  v.  People  ....  86 

Lambertson  v.  People      .     .  210 

Lange,  Ex  parte 40 

Lathrop  v.  Amherst  Bank,  66,  176 

Lawrence  p.  Com 5 

Lawton  v.  Sun  Mut.  Ins.  Co.  65 

Layton  v.  Harris     ....  171 

Leeser's  Case 82 


Xll 


TABLE  OF  CASES. 


Levi  v.  Levi  .... 

.      86 

McNeal  v.  Woods    . 

51 

Lewer  v.  Com.    .     .     . 

.    .     154 

.      40 

Lewis  v.  State    .     .    . 

.      29 

McPherson  v.  Cox  . 

.     176 

v.  Com.     .     .    . 

.      82 

McReynolds  v.  State 

.      67 

v.  Walter      .     . 

.     173 

.     123 

Lindsay  v.  People   .     . 

.      36 

Mezzara's  Case  .    . 

.     170 

Livingston  v.  Com. 

.    138 

.      86 

Lloyd  v.  State     .     .     . 

.    .     196 

.       14 

Long  v.  Rogers  .     .     . 

.      57 

Mills  v.  Com.       .     . 

.      45 

v.  State      .     .     . 

207,  208 

Loomis  v.  People     .     . 

.     154 

.     105 

v.  Edgerton 

.     177 

Mitchell  v.  Tibbetts 

.      41 

Lopez  v.  State     .    .    . 

.      36 

Montgomery  v.  State 

.     187 

Lott  v.  Burrill     .     .     . 

.      92 

Moody  v.  People 

44,  147 

Lowe  v.  State     .     .    . 

.     168 

.      92 

Lowenthal  v.  State  .     . 

.      97 

v.  Illinois 

40,94 

Luckey  v.  State  .    .    . 

.    201 

Morris    River    Coal 

Co 

v. 

Luke  v.  State     .     •     • 

53 

86 

Lyle  v.  Clesson  .     .     . 

.     172 

.      60 

Lynch  v.  Com.    .     .     . 

.      20 

Morton  v.  Shoppel  . 

.     .      59 

Lyons  v.  State    .    .    . 

.      44 

Moseley  v.  State 
Munden  v.  State 

.     178 
.     184 
.     143 

M. 

Macconnehy  v.  State  . 

.      23 

N. 

Mahoney  v.  People 

.    206 

Maloue  v.  State  .    .    . 

.      22 

Nelson  v.  Musgrave     .     .     .     170 

Marcus  v.  State  .     .    . 

.     152 

v.  State   .     . 

135 

Maria  v.  State     .     .     .    . 

.     134 

Newkirk  v.  Cone     . 

66 

Marianna  Flora,  The  . 

.     191 

Nichols  v.  Com. 

168 

Marsh  v.  Loader      .     . 

.      13 

v.  People    . 

153 

Marshall  v.  State    .    .    . 

.  6,22 

Norden's  Case     .     . 

208 

Martin  v.  Clark  .     .     . 

66,  176 

Northcot  v.  State    . 

178 

Martinez  v.  State    .     . 

.     166 

Norton  v.  Ladd  .    . 

161 

Mary  v.  State     .     .     . 

.      54 

Mason  v.  People     .     . 

.      79 

Master  v.  Miller  .     .    . 

.      66 

O. 

Matthews  v.  Terry  .     . 

.      56 

May  bin  v.  Raymond    . 

.     176 

O'Bannon's  Case    ....    209 

Mazagora's  Case     .     . 

.    125 

O'Neil  v.  State    .     . 

39,47 

McCarty  v.  State    .     . 

.      31 

Ortner  v.  People 

.     184 

McCarty's  Case .     .     . 

.    215 

.      92 

McClurg  v.  Wright 

.      36 

.     163 

McConnell  v.  State 

.      92 

.    208 

McCord  v.  People  .     . 

.     112 

McCutcheon  v.  People 

6 

McDaniel  v.  State  .     . 

.    207 

P. 

McGary  v.  People   .     . 

.      52 

Mcintosh  v.  Matherly . 

.    .     172 

Mclntyre  v.  People 

.      22 

v.  People    ....     155 

McKay  v.  State  .    .    . 

.    .      60 

Pankey  v.  People    ....     185 

McNaughten's  Case     . 

.    .      16 

177 

TABLE  OF  CASES. 


Xlll 


Parsons  v.  State      .     .     . 

36,  138 

People,  The,  v.  Garbutt    . 

P',  20 

Patapeco  Ins.  Co.  v.  Coullen      65 

v.  Gates  .     . 

18,  19 

Patrick  v.  Smoke  .    .    . 

.     187 

v.  Getchell  , 

111 

Patterson  v.  People      .     . 

.     146 

v.  Granice    . 

41 

Pauli  v.  Com 

.     125 

v.  Haggerty 

63 

Payne  v.  People      .     .     . 

.     162 

v.  Haynes    . 

111 

Pay  son  v.  Macomber  .     . 

.    147 

v.  Hennessy 

97 

208 

v.  Howe  .     . 
v.  Huckley  . 

99 

,     170 

93 

,     196 

v.  Hunckeller 

40 

Pennsylvania  v.  Sullivan 

.     193 

v.  Johnson    109.  1 

People,  The,  v.  Ah  Fat    . 

.     138 

196 

v.  Albany    . 

.       15 

v.  Juarez 

.     167 

v.  Alger  .     . 

.     209 

v.  Kelley 

128 

v.  Allen  .     . 

.      98 

r.  Kenyon    . 

.     209 

v.  Ames  . 

.      36 

v.  Krummer 

.     123 

v.  Austin 

.     136 

'v.  Lamb  .     . 

112 

v.  Babcock 

.      82 

v.  Leonard  . 

.     119 

v.  Barric 

.      36 

v.  Lewis  .     . 

•3) 

v.  Bearse 

•      31 

v.  Lombard 

.     143 

v.  Belcher   . 

.     152 

t  v.  Malay 

.     105 

v.  Bell     . 

.       18 

v.  Mallory   . 

.     183 

v.  Bennett 

.    163 

v.  Maloney  . 

.     161 

v.  Best    . 

.*     19 

v.  McCann  . 

.       19 

v.  Bransby 

.      56 

v.  McDaniels 

.     204 

v.  Brown 

.      67 

v.  McDonald 

.     195 

v.  Burden 

.     189 

v.  McKinney 

.     187 

v.  Butler 

64,  135 

v.  McMurray 

.      56 

v.  Calhoun 

.     105 

v.  Moody       132, 

v.  Call     . 

.     154 

v.  Mortimer 

.      39 

v.  Carabin 

.     158 

v.  Mosher    . 

.      67 

v.  Caryl  . 

.      66 

v.  Murphy  . 

.     157 

v.  Caswell 

.     196 

v.  Murray    . 

.      29 

v.  Clark  . 

131,  209 

v.  Newberry 

.      33 

v.  Clough 

.     Ill 

v.  New  York  Gas- 

v.  Cole     . 

.     142 

Light  Co. 

.     182 

v.  Cook  . 

35,  184 

v.  Norton     . 

.      35 

v.  Costello 

.      36 

v.  Orcutt 

.      52 

v.  Cotteral 

.      52 

v.  Parshall  . 

.      44 

v.  Crissic 

.     109 

v.  Peacock  . 

.     123 

v.  Croswell 

.     170 

v.  Philips     . 

.      66 

v.  Crystal 

.     189 

v.  Porter 

.      68 

v.  Cunningl 

am    182 

v.  Queen 

.      56 

v.  Dalton 

109,  153 

v.  Bandolph 

13,  193 

v.  Davis     1 

3,45,123 

v.  Kathburn 

.       41 

v.  Dohring 

.    .     194 

v.  Richards . 

.       87 

v.  Evans 

.     .     189 

v.  Robinson 

.  6,  -J2 

v.  Field  . 

.     .     118 

v.  Buggies  . 

IS,  68, 

v.  Fish     . 

.    .      82 

170 

v.  Fisher 

.     .      86 

v.  Shall  .     . 

.     122 

v.  Fitch  . 

.    .     124 

v.  Slack  .     . 

.       67 

v.  Freer  . 

.    .      92 

v.  Smith,122, 159,177 

v.  Gaige  . 

.     .     184 

v.  Taylor     . 

.      60 

XIV 


TABLE   OF  CASES. 


People,  The,  v.  Thomas  .  .  110 
v.  Thompson  .  154 
v.  Tomlinson  .  122 
v'.  Travis  .  .  185 
v.  Tyler  ...  41 
v.  Van  Blarcom  51 
v.  Vanderbilt  .  182 
v.  Warren  .  .  40 
v.  Whalley  .  11,  105 
v.  Wiley  .  162,  196 
v.  Williams  23,  131 
v.  Wilson  .  .  92 
v.  Yslas  .    .     55,  59 

Perine  v.  Dunn 176 

Phillips  v.  People    ....      40 

Pike  u.  Hanson 58 

Pistorious  v.  Com 143 

Pleasant  v.  State     ....     194 

Points  v.  State 133 

Polk  v.  State 20 

Pond  v.  People   ....   63,  143 

Powell  v.  Com 124 

Powers  v.  Dubois    ....     170 
Pratt  v.  Hutchinson     .    .     .    104 

v.  Price 186 

Preester  v.  Angley  ....     146 
Preston  v.  State      ....     134 

Price  v.  State 136 

Putnam  v.  Putnam  ....      67 


Q. 

Queen  v.  Kenny      ....     197 
v.  Mayor,  &c.    .    .     .  5,  11 


R. 

Bafferty  v.  People  ....  21 

Banney  v.  People    ....  108 

Bead  v.  Com.      .     .     .      132,  134 

Beanes's  Case 207 

Redfield  v.  State      ....  106 

Reed  v.  State 149 

Beese  v.  Wyman     ....  108 

Regina  v.  Abbott    ....  114 

v.  Allen  ....     67,  70 

v.  Ardley     ....  108 

v.  Aston 100 

v.  Bailey     ....  157 

v.  Baker      ....  79 

v.  Banks      ....  195 


Begina  v.  Barrett 
v.  Barrow 
v.  Beecham 
v.  Beechey 
v.  Benge 
v.  Best    . 
v.  Bingley 
v.  Bird    . 
v.  Blake 
v.  Bowers 
v.  Britton 
v.  Brown 
v.  Bryan 
v.  Bunce 
v.  Bunn  . 
v.  Burdett 
v.  Case   . 
v.  Caspar 
v.  Caton . 
v.  Champlin 
v.  Chapman 
v.  Chappie 
v.  Clinton 
v.  Closs  . 
v.  Codringt 
v.  Collins 
v.  Conde 
v.  Copeland 
v.  Coulson 
v.  Danger 
t;.  Davis  . 
v.  Day     . 
v.  Doody 
v.  Driscoll 
v.  Duffin 
v.  Eagleton 
v.  Fairie  . 
v.  Faulkner 
v.  Firth  . 
v.  Fletcher 
v.  Gallears 
v.  Gayler 
v.  Giles  . 
v.  Godfrey 
v.  Gompertz 
i>.  Goss 
v.  Green 
v.  Greenwood 
v.  Haigh 
v.  Haines 
17.  Halford 
v.  Hallett 
v.  Hamilton 


194 

194 

156 

100 

141 

86 

162 

8,  38,  163 

86 

98 

58 

86 

108 

109 

85 

41 

56,  61,  194 

196 

30 

194 

29 

35 

160 

121 

114 

29 

138 

109 

3,  125 

111 

109 

195 

29 

62 

70 

115 

183 

53 

149 

56,  61,  184 

161 

33 

109 

157 

87 

108 

160 

30 

159 

72,  145 

158 

61 

166 


82, 


us 


TABLE  OF   CASES. 


XV 


Begina  v.  Hancock 

V.  Hanson    .     . 

. 

75 

Regina  v.  Ritson 

...     124 

.      58 

v.  Roberts  . 

...       29 

v.  Harris      .     . 

51,  100 

v.  Rowlands 

.     .     - 

v.  Hawkins 

.      97 

v.  Saunders 

.     .   61,  194 

v.  Hensler    .     . 

.     Ill 

v.  Selway    . 

...     165 

v.  Higgins  .    . 

.      29 

v.  Sharman 

...     121 

v.  Holland  .     . 

6 

v.  Shepard  . 

.     .     .      140 

v.  Holloway     . 

.    156 

v.  Smith 

13,  124,  139 

v.  Hugh  .     .     . 

.     198 

v.  Spencer  . 

...     140 

v.  Hughes    .     . 

.     189 

v.  Squire     . 

...      98 

v.  James      .     . 

.      60 

v.  St.  Georg 

B   .     .     .      60 

v.  Jellyman 

.      70 

v.  Taylor     . 

.     .     29,  33 

v.  Jessop 

113,  125 

v.  Thompso 

i   ...     154 

v.  Jones  .     .     . 

107,  157 

v.  Toshack  . 

.     .     .     121 

v.  Jordan 

.    .      13 

v.  Townley 

...     160 

v.  Kenrick  . 

.  3,86 

v.  Walls .     . 

...     165 

v.  Kilham    . 

.     116 

v.  Warburtc 

n .     .     .      86 

v.  Langford 

.     178 

u.  Wardhurs 

t  .    .56,  194 

v.  Langmaid 

.     198 

v.  Watt  .     . 

...      97 

v.  Lewis 

.      56 

v.  Welch 

...      99 

v.  Lince  .     . 

.     114 

v.  West  .     , 

45,  128,  151 

v.  Lock   .     . 

5( 

1,  61,  195 

v.  White 

...     157 

v.  Lowe  .    . 

.     141 

v.  Williams 

...      29 

v.  Mabbett  . 

.     141 

v.  Williamsc 

>n.     .     .     108 

v.  Manning 

.      34 

v.  Wilson 

...     100 

v.  Marrow   . 

.     119 

v.  Woodhur 

st  .     .     .       61 

v.  May    .     . 

.      28 

v.  Woolley  . 

...     109 

v.  Mayers    .     . 

56 

,  61,  195 

v.  Wortley 

...     169 

v.  M'Gavaran 

.      56 

v.  Wynn 

...     157 

t;.  Meek  .     . 

.     188 

v.  Yates  . 

...     188 

v.  Meredith 

28,61 

v.  Young 

...      61 

v.  Middleton 

116,  151 

Remington  v.  Cong 

Ion    .     .     173 

v.  Mills   .     . 

.     113 

Respublica  v.  Caldv 

ell,  6, 183,  212 

v.  Moak  .     . 

121 

v.  Denn 

is  .     .     .     170 

v.  Negus 

98 

v.  Hann 

urn    .     .     106 

v.  Nichol     . 

56 

v.  Powe 

11  .     .     .      82 

v.  Oates  .     . 

108 

v.  Robe 

rts      .   46,  126 

v.  O'Doherty 

92 

Rex  v.  Astley 

...    207 

v.  O'Dogherty 

93 

v.  Bailey  .    . 

.    .    .        5 

v.  Overton  . 

188 

v.  Haines      .     . 

...     104 

v.  Parish 

125 

v.  Barnard   . 

.     .     .     109 

v.  Pembliton 

178 

v.  Bazely 

...       96 

v.  Perry  .     . 

160 

v.  Beale  .     .     . 

...       69 

v.  Phillips    . 

13 

p.  Best     .     . 

...      86 

v.  Philpott  . 

188 

v.  Bigley .     . 

...      74 

v.  Pierce 

150 

v.  Blackham 

...     208 

t>.  Pollard     . 

13 

v.  Bolland    . 

.    .    .     128 

v.  Prince 

5,  116 

v.  Boyer  .     . 

...        8 

v.  Railway  Co 

16 

v.  Brice   .    . 

...      72 

v.  Reed  .     . 

11 

t>.  Broughton 

...     105 

v.  Regan 

63 

v.  Burdett    . 

.      105, 172 

v.  Riley  .     . 

159 

v.  Carlile 

.    .      173,182 

v.  Riualdi    . 

124 

v.  Carr     .    . 

.      98 

XVI 


TABLE  OF  CASES. 


Rex  v. 


Clements . 

.      92 

Cooper     . 
Cordy 
Creavey   . 
Crump     . 
Davis  .     . 

7 

33 

198 

173 

.     156 

7,  196 

De  Beranger 
D'Eon      . 

86 
170 

Despard   . 
Dickenson 

36 
156 

Dunn   .     . 

124 

Dunstan  . 

188 

Dupee 
Dyson 
Egerton  . 
Esop    .     . 

Everett     . 

83 
128 
207 

10 
.      69 

Eyres  .     . 
Farr     .     . 

105 
73 

Fawcett  • 

82 

Francis     . 

206 

Fuller  .     . 

2 

4,208 

Gill .     .     . 

64 

Gnosil .     . 

206 

Gowen 

61 

Grantham 

82 

Gray    .     . 
Greenacre 

86 
33 

Haines 

7 

2,  141 

Haley  .    . 
Hall     .     . 

184 
11 

Hammond 

86 

Hanson     . 

83 

Harmon  . 

165 

Harris  .     . 

2 

9,125 

Harrison  . 

105 

Harvey     . 
Haywood 
Hethoringtoi 
Higgins    . 
Hughes     . 
Hull     .     . 

1 

171 

136 
68 
105 
204 
140 

Hyams 
Jacobs 

72 
70 

Jarvis  .    . 

33 

Johnson  . 

83,86 

Jolliffe     . 

92 

King    .     . 
Kirkwood 

35 
30 

Lambert  . 

170 

Lapier .     . 
Lewis  .     .     . 

206 
186 

Loggem   . 

105 

Rex  v.  Manbey 
v.  March 
v.  Harriot 
v.  Marshall 
v.  Mason 
v.  McDaniel 
v.  McKearney 
v.  Mellish 
v.  Moore 
v.  Morfit 
v.  Morris 
v.  Mulreaty 
v.  Murray 
v.  Opie     . 
v.  Osborn 
v.  Owen  . 
v.  Parnell 
v.  Pedley 
v.  Phillips 
v.  Pitman 
v.  Pollman 
v.  Pywell 
v.  Reading 
v.  Reekspear 
v.  Roberts 
v.  Robson 
v.  Roderick 
v.  Rusby  . 
v.  Russell 
v.  Rust     . 
v.  Salisbury 
v.  Sanger 
v.  Simons 
v.  Smith  . 
v.  Smyth . 
v.  Snowley 
v.  Spencer 
v.  Spiller 
v.  Stapleton 
v.  Stevenson 
v.  Stratton 
v.  Summers 
v.  Thorn  . 
v.  Treble . 
v.  Turner 
v.  Van  Butcbell 
v.  Vandercomb 
v.  Varley      .    . 
v.  Vaughan  .    . 
v.  Waddington 
v.  Wall    .     .    . 
v.  Walsh  .    .    . 
v.  Ward  .    .    . 


51 

209 
123 
206 
207 

76 

98 
209 
157 

34 
210 

97 
103 
82,  106 

13 
186 

51 
29,  156 
160 


6 

70 

105 

154 

28 

104 

72,  184 

77 

100 

128 

108 

72,  80,  197 

119 

100 

108 

140,  174 

13 

86 

14 

149 

83 

122 

5,86 

140 

40 

94 

69 

104 

122 

149 

125 


TABLE  OF  CASES. 


XVII 


Rex  v.  Washington 

v.  Watson     . 

v.  Watts  .     . 

v.  Webb  .     . 

v.  Welch  .     . 

v.  Wheatly  . 

v.  White  .    . 

v.  Whitehead 

v.  Williams  . 

v.  Wilson 

v.  Winkworth 

v.  Wodston  . 

v.  Wood  .     . 

v.  Woodfall . 

v.  York    .    . 

v.  Young .  . 
Rice  v.  State  .  . 
Richardson  v.  Rowland 

v.  State 
Richels  v.  State  . 
RiggB  v.  Denniston 
Riley  v.  State     . 
Robinson  v.  Com. 
Roberts  v.  People 
v.  State . 
Roberts'  Case 
Robertson  v.  Dingley 
Holland  v.  Com.  . 
Root  v.  King  .     . 
Roscow  v.  I 
Ross  v.  Hunter    . 
r.  Innis  .     . 
v.  State  .     . 
Runyan  v.  State. 


104, 


140, 
66, 


40, 


Sampson  v.  Henry  . 

Sasser  v.  State    . 

Sattler  v.  People 

Savannah  l'irates    . 

Schenck  0.  Schenck 

Schlencher  v.  State 

Schomp  v.  Schenck 

Schwartz  v.  Com.    . 

Scott  v.  Coin.      .     . 
v.  United  States 
v.  People  .     . 

Serlsted's  Case   .     . 

Severance  v.  Carr    . 

Shafher  v.  State 

Shetlit  v.  Van  Duasen 


60 

Shepard's  Case  . 

.     178 

178 

Shepherd  v.  People 

.       51 

183 

Shoemaker  v.  State 

.     131 

128 

Silver  v.  State     .     . 

.     .     187 

94 

Simmons  v.  Kelley 

.     105 

,  28 

Simpson  v.  Slate 

.      47 

182 

Simpson's  Case  . 

.     140 

87 

Slatterly  v.  State 

.     18U 

110 

Slattery  v.  People 

.       45 

119 

Smith  v.  Coin.     . 

.      28 

207 

v.  State,  36, 

15, 

55 

,  171, 196 

48 

v.  People 

.      80 

207 

Snap  v.  People   . 

.     177 

6 

Snyder  v.  People 

.       51 

13 

In  re   . 

108,  114 

82 

Spalding's  Case  . 

.      51 

196 

Spann  v.  State    . 

.     it; 

176 

Squire  v.  State    . 

.      67 

47 

Stanley  v.  State 

.      41 

60 

Stansbury  v.  Marks 

.      92 

170 

Stauton  v.  Sedgwick 

.      66 

201 

Statesbery  v.  Smith 

.     105 

67 

State  v.  Ailey     .     . 

.     180 

22 

v.  Alexander 

.     205 

137 

v.  Alford    . 

.       56 

215 

v.  Ames     . 

.     121 

03 

v.  Anderson 

.     125 

75 

v.  Anone    . 

.       36 

171 

v.  Appleng 

.     161  • 

05 

v.  Armstrong 

.      46 

65 

v.  Avery    . 

29,  170 

102 

v.  Baker     . 

.       57 

38 

v.  Bantley 

7 

142 

v.  Barefoot 
v.  Battler  . 
v.  Beach    . 
v.  Bearse   . 
v.  Beck .     . 

.      67 
.      40 
.     178 
.     209 
.       56 

118 

v.  Bell   .     . 

22,81 

123 

v.  Benedict 

.      60 

178 

v.  Berryman 

.     169 

191 

v.  Bohan    . 

.      62 

172 

i>.  Brandon 

.      19 

22 

v.  Brazil     . 

.    21 12 

66 

v.  Briley    . 

.     180 

189 

v.  Broderick 

.    206 

17 

v.  Brooks  . 

90,  208 

40 

v.  Brown    . 

10, 

154,  194 

108 

v.  Buchanan 

.      86 

82 

v.  Buckman 

.     182 

158 

v.  Burgdof 

.     194 

67 

v.  Bumham 

85,  170 

172 

c.  Burt  .     . 

.     159 

xvm 


TABLE  OF   CASES. 


State  o.  Barton 
v.  Calder 
v.  Cargill 
v.  Carron 
v.  Cavinam 
v.  Chamberlain 
v.  Chandler 
v.  Chapin  . 
v.  Chase     . 
v.  Cheatwood 
v.  Chitty    . 
v.  Chopin  . 
v.  Chunn    . 
v.  Clarissa 
«>.  Clark     . 
v.  Clarke    . 
v.  Cleaves  . 
v.  Cochran 
v.  Cole  .    . 
v.  Coleman 
v.  Connolly 
v.  Coombs 


105 

203 

118 

44 

209 

187 

42,68 

31,41 

170 

136 

66 

143 

114 

29 

75 

178 

14 

187 

40 

33 

62 

159 


v.  Cooper,  28,  40,  45,  61,  81, 

126 

v.  Coppenburg    .     .     .     196 

v.  Coulter 92 

v.  Cowell 126 

v.  Cox 127,  142 

v.  Crawford  ....  19 
v.  Crowner  ....  46 
v.  Cruikshank  .  .  .  187 
v.  Cutter  ....  11,  105 
v.  Daley     ......       39 

v.  Davis 59 

v.  Daycon 186 

v.  Decklotts  ....  9 
v.  Delyon  .         ...      82 

v.  Dewitt 86 

v.  Doepke 160 

v.  Donaldson  ....       86 

v.  Dorr 114 

v.  Doty 92 

v.  Dou'd 201 

v.  Downing    ....      47 

v.  Dresser 38 

v.  Earl 92 

v.  Ellis 69 

v.  Estes 108 

v.  Evans 108 

v.  Fairelough      .      153,  159 

v.  Fann 153 

t'.  Farrar 44 

v.  Farrier 29 


State  v.  Felten    . 
v.  Ferguson 
v.  Findley  . 
v.  Fisher    . 
v.  Flynn     . 
v.  Foster    . 
v.  Franklin  Folly 
v.  Furlong 
v.  Garland 
v.  Garvey  . 
v.  Gates 
v.  Gazell    . 
v.  Gherkin 
v.  Gibson   . 
v.  Goode    . 
v.  Goodman 
v.  Goodnow 
v.  Goold     . 
v.  Gorham 
v.  Gorman . 
v.  Gould     . 
v.  Graham 
v.  Great  Works 
v.  Gut   .    . 
v.  Hall  .    . 
v.  Hamilton 
v.  Hancock 
v.  Hangman 
v.  Harris    . 
v.  Hart  .     . 
v.  Hause    . 
v.  Hawkins 
v.  Hay  ward 
v.  Head 
v.  Hefiin     . 
v.  Helle      . 
v.  Helms    . 
v.  Helvenston 
v.  Hennessy 
v.  Henry    . 
v.  Higdon  . 
v.  Hildreth 
v.  Hill    .     . 
v.  Hilton    . 
v.  Hoit  .     . 
v.  Homes   . 
v.  Hoover  . 
v.  House     . 
v.  Howard 
v.  Howerton 
v.  Hull  .     . 
v.  Hurd 
v.  Hutchinson 


07, 


Co. 


17,  19 

142 

209 

.  158,  204 

178 

40 

183 

163 

92 

22 

188 

149 

144,  180 

62 

32 

67 

7,46 

56 

163,  205 

159 

171 

182 

15 

127 

186 

187 

196 

193 

139 

183 

178 

156 

185 

189 

47 

187 

177 

92 

168 

73 

209 

35,  136 

142 

200 

141 

158 

142 

161 

45 

207 

56 

61 

40 


TABLE   OF  CASES. 


XIX 


State  v.  Iluting 16 

v.  Hyer 36 

v.  Inness 40 

v.  J.  B 189 

v.  Jackson 203 

v.  Jarvis 162 

v.  Jefferson     ....       40 

v.  Jenkins 78 

v.  Joaquin 189 

v.  Johnson,  16, 18,  22,  52,  73, 
130 
v.  Jones,  17,  19,  82,  149,  182 


Raster 

Keenan . 

Keene    . 

Kent .     . 

Kimball 

Knox 

Kraeger 

Landreth 

Lawrence 

Leach     . 

Learned 

Leavett  . 

Ledford . 

Lee    .     . 

Lehre 

Litchfield 

Lonon    . 

Lowry    . 

Lynch    . 

Lynus    . 

Lyon 

Madison 

Maires    . 

Manuel  . 

Marlen  . 

Marsh    . 

Martin    . 

Marvin  . 

Massage 

Matthews 

Maybery 

Mayer    . 

McAdden 

McCarty 

McCune 

McDormott 

McDowell 

McGonigle 

McGowan 

McKean 

McPherson 


183 

187 

92,  184 

39 

123 

187 

124 

178 

19 

201 

13 

177 

156 

187 

171 

36 

61 

40 

19 

161 

61 

181 

105 

177 

19 

120 

62, 143 

47,  176 

134 

92 

85 

108 

120 

136 

206 

178 

19 

23 

52 

86 

76,  94 


State  v.  Merrett 182 

v.  Millard 169 

v.  Mills 113 

v.  Mitchell      ....       52 

v.  Molier 187 

v.  Moore,  115,  126,  136,  146, 

160 

v.  Moran 36 


v.  Mordecai 

.      73 

v.  Morgan  . 

.      55 

v.  Morphin 

.     168 

v.  Morphy 

.       86 

v.  Morrill  . 

92,  168 

v.  Morris  Railroad  Canal  Co. 

181 

v.  Morse 182 

v.  Mullen  . 

.     163 

v.  Murphy 

45,  134 

v.  Murray  . 

87,  200 

v.  Neely     .     . 

59,  142 

v.  Newby  . 

.     178 

v.  Newkirk 

.     178 

v.  Norris    . 

.     188 

v.  Noyes    . 

.      87 

v.  Nutt  .     . 

.      40 

v.  O'Brien  . 

.     141 

v.  Oliver    . 

.      66 

v.  Outlaw  . 

.      78 

v.  Patten    . 

2 

v.  Patterson 

32, 

137,  143 

v.  Payson  . 

.     182 

v.  Pearson . 

.     118 

v.  Pennington 

.      95 

v.  Perry     . 

.      47 

v.  Philpot  . 

.      92 

v.  Pierce    . 

122,  178 

v.  Pike  .     . 

.       16 

v.  Pitts  .     . 

.      40 

v.  Porter    . 

.  .     132 

v.  Potts      . 

.      78 

v.  Powell  . 

68,  182 

v.  Predger 

.     110 

v.  Prudhoram 

B 

.      86 

v.  Pry  or     . 

.     108 

v.  Purdy    . 

.      69 

v.  Purse 

.     182 

v.  Rankin  . 

.     1-.: 

v.  Ray  .     . 

.     120 

v.  Raymond 

.     189 

v.  Renton  . 

.    .    204 

v.  Richards 

.    .      16 

v.  Ricker   . 

.    .      31 

v.  Rickey  . 

.    .      86 

XX 


TABLE  OF  CASES. 


State  v.  Ripley   .    .    . 

.     .       86 

State  v.  Wallace 

, 

46 

v.  Robinson    .     . 

122,  178 

52 

i;.  Rollins  .     .     . 

.     .     147 

122 

v.  Rose  .... 

.     .     169 

v.  Weatherby 

46 

r.  Rowley .    .    . 

.   85,  108 

47 

v.  Ruhl .... 

.   44,126 

196 

v.  Rushing      .     . 

.     .     196 

v.  Wheeler 

122 

v.  Russell  .     .     . 

.    .    203 

149 

v.  Sales .... 

.   29,  103 

v.  Whittemore 

189 

v.  Sam  .... 

.     .       13 

v.  Widenhouse 

120 

v.  Schlagal     .    . 

.     .      36 

v.  Williams    .     95,154,159, 

v.  Sehlotraan .     . 

.     .     181 

189 

v.  Scott      .     .     . 

.     .      26 

v.  Willis 72 

t;.  Scovel    .     .     . 

.     .     197 

v.  Willberger      .     .     .     127 

v.  Scripture    .     . 

.     .      75 

v.  Willspaugh     ...      44 

v.  Sharp     .     .     . 

.     .     186 

v.  Wilson  .     .  40, 75, 89, 160, 

v.  Sherman     .     . 

.     .     159 

178 

v.  Shurtliff     .     . 

.     124 

v.  Wisdom      ....     149 

v.  Simmons    .     . 

.     180 

v.  York.     . 

.     156 

v.  Simons  .     .     . 

.    .     184 

v.  Young    . 

113,  124 

v.  Sims  .... 

.     .       59 

v.  Younger 

.    .     116 

v.  Sloane    .     .     . 

.     143 

Stephen  v.  Myers 

.       59 

v.  Smith     .     .  6,  9, 

130,  142, 

Steel  v.  Southwick 

.    170 

156 

Stern  v.  State 

5 

v.  Snow      .     .     . 

.     203 

Sterns  v.  Felkner 

.     176 

v.  Spencer.     .     . 

.       19 

Stewart  v.  State  . 

143,  190 

v.  St.  Clair      .     . 

.     197 

Stoffer  v.  State   . 

.     142 

v.  Stalecup     .     . 

.    203 

Stokes  v.  People 

39,  132 

v.  Stanley  .     .     . 

.     109 

Stone  v.  Nat.  Ins.  C 

>. 

.      65 

v.  Starr  .... 

.     135 

v.  State 

.     178 

v.  Stephenson 

.     186 

Stow  ?;.  Converse    . 

.     170 

v.  Stotts     .    .    . 

.     105 

Streety  v.  Wood 

.     173 

v.  S  toy  ell  .    .    . 

.      44 

Sturock,  In  re 

.       92 

v.  Stratton      .     . 

.     122 

Sulzton  v.  Norton 

.      69 

v.  Straw     .     .     .     . 

86,  203 

Swift  v.  Com.      .     . 

.      29 

v.  Stroll      .     .     .     . 

.      82 

v.  Sumner  .     .     .     . 

.       47 

v.  Taylor    .     .     . 

161,  182 

T. 

v.  Thatcher    .     . 

110,  114 

v.  Thompson  .     .     . 

.     120 

Tabart  v.  Tupper    ....     170 

v.  Tidvvell  .     .     .     . 

.    209 

v.  Timmens    .     .     . 

.    209 

v.  Tomlin   .     .     .     . 

.     108 

Taylor  v.  State   .    .     .39,  47,  194 

v-  Toole      .     .     .     . 

.      52 

v.  People     ....     183 

v.  Townsend  .     .     . 

.    204 

Thallhimer  v.  Brinkerhoof  .     176 

v.  Trask     .     .     .     . 

.     184 

Thomas  v.  Croswell     .      170,  173 

v.  Underwood     .     . 

41,  136 

v.  People   ....     109 

v.  Vnnce     .     .     . 

139,  143 

Thompson  v.  State  .    .    . 

67,74 

v.  Van  Hooten    .     . 

.      45 

Thurley  v.  Riggs     .     .     . 

.      66 

v.  Vaughan     .     .     . 

.      84 

Todd  v.  Hawkins     .    .    . 

.     173 

v.  Vickery      .     .     . 

.     116 

Toogood  v.  Spyring     .    . 

.    173 

v.  Walcott      .     .     . 

.      36 

Trist  v.  Childs     .... 

69 

v.  Wall 

.     184 

Tuttle  v.  People 

• 

187 

TABLE  OF  CASES. 


XXI 


U. 

Olrick  v.  Com 

United  States  v.  Andy 

v.  Anthony 


5 

40,41 

5,0, 

11 

187 

186 


v.  Atkins 

v.  Babcock 

v.  Botts 

v.  Brig   Malek  Ab 

del  .  . 
v.  Burr  .  . 
v.  Clew 
v.  Cole  .  . 
v.  Conant  . 
v.  Connor  . 
v.  Davis  . 
v.  Drew 
v.  Faye .  . 
v.  Finlay  . 
v.  Freeman 
v.  Gilbert  . 


101 

215 

97 

87 

38 

187 

100 

23 

163 

39 

139 

40,  191 


v.  Greathouse  213 
v.  Hand  .  .  55 
v.  Han  way  .  213 
v.  Hewson  17,  127 
v.  Hodges  .  .  213 
v.  Holmes  .  .  19 
v.  Hoxie  .  .  213 
v.  Hudson  .  .  2 
v.  Jones,  35,  166, 
191,  208 
v.  Kepler  .  .  36 
v.  Kerr  ...  6 
».  Klintock  .  191 
v.  Marigold  .  93 
r.  Mc<  Hue  .  .  16 
v.  Mingo  .  .  132, 
142 
v.  Mitchell  .  213 
v.  Morrow  .  .  93 
v.  Palmer  .  .  191 
v.  Paul  ...  2 
v.  Pirates  .  .  40 
v.  Shellmire  .  187 
v.  Stanley .  .  187 
v.  Taintor  .  .  7,  8 
v.  Taylor  .  .  140 
v.  Tully  .  .  191 
v.  Ward  .  .  41 
v.  Whittier  .  89 
v.  Worall  .  29,41 
Updegraph  v.  Com.      .     .      42,  88 


V. 

Valderj  v.  Com 142 

Vallejo  v.  Wheeler  .    ...  65 

Van  Steenburgh  v.  Kortz     .  185 

Vaux's  Case 30 

Vidal  v.  Girard's  Ex.  .    .    .  43 


w. 

Wagner  v.  People 
Walker  v.  State  . 
Walsh  v.  People 
Walter  v.  State   . 
Wanson  v.  Say  ward 
Ward  v.  People  . 

v.  State 
Warren  v.  State . 
Waterman  v.  Peopl 
Watts  v.  State  . 
Weaver  v.  Lloyd 
Wenman  v.  Ash . 
White  v.  Huss     . 

v.  State    .    , 
Whitfield  v.  S.  E.  Ry.  Co 
Whittem  v.  State 
Wickham  v.  Conklin 
Wier's  Appeal 
Willey  v.  State  . 
William  Perkins'  Case 
Williams  v.  Carnes 
v.  State 

Williamson  v.  Sammons 

Willis  v.  People 

Wills  v.  State 

Wilson  v.  State   ...   40 


v.  People     . 
v.  Nations    . 
r.  Noonan   . 
Wolfsten  v.  People 
Wood  v.  State     .     . 
v.  Phillips 
v.  MeGuire    . 
v.  People  .     . 
Woodman  r.  Kilbourn 
Wright  v.  Meek  .     . 
v.  State  .     . 

v.  People     . 
v.  Woodgate 


20 
72 
29,69 
193 
160 
31,  163 
161 
161 
121 
31 
170 
172 
122 
76,  186 
172 
93 
176 
182 
45 
41 
170 
,  13,  31, 
193 
.  66 
.  18 
.  41 
,  47,  94, 
168 
.  159 
.  187 
.  170 
.  151 
.  209 
.     117 

.       17n 

.  188 
.  182 
.  60 
46,  17s, 
194 
.  99 
.     1 73 


XX11 


TABLE   OF   CASES. 


Y. 

Yates  v.  People 143 

Young's  Case 86 

Young  v.  Rex 109 


Z. 


Zink  v.  People 116 


CRIMINAL  LAW. 


CRIMINAL   LAW. 


CHAPTER  I. 

OF    THE     DEFINITION    OF    CRIME,   AND   OF    CERTAIN 
GENERAL   PRINCIPLES    APPLICABLE    THERETO. 

CRIME   DEFINED. 

§  1.  Crime  is  a  violation  or  neglect  of  legal  duty, 
of  so  much  public  importance  that  the  law,  -either 
common  or  statute,  takes  notice  of  and  punishes  it.1 

§  2.  By  whom  defined. —  Crimes  are  denned  both  by 
the  common  and  by  the  statute  laws, — the  common  law 
prevailing,  so  far  as  it  is  applicable  and  not  abrogated 
by  statute,  in  all  the  States  of  the  Union.  Under  the 
government  of  the  United  States  there  are,  strict ly 
speaking,  no  common-law  crimes.  That  government 
has  never  adopted  the  common  law.  Its  criminal  juris 
diction  depends  entirely  upon  statutory  provision  au- 
thorized by  the  Constitution ;  and  where  the  statute 
makes  punishable  a  crime  known  to  and  defined  by  the 
common  law,  but  does  not  itself  define  the  crime,  the 
common  law  is  resorted  to  for  the  definition.2 

1  See  4  Bl.  Com.  p.  4,  and  note  by  Christian  (Sharswood's  ed. 
1860) ;  Rex  v.  Wheatly,  2  Burr.  1125  ;  s.  c.  and  notes,  1  Lead.  Cr.  Cas. 
1-S4  ;  1  Bishop  Cr.  Law,  §  32. 

*  United  States  v.  Hudson,  7  Cranch  (U.  S.)  32  ■  1  Bishop  Cr.  Law, 
§194. 


2  CRIMINAL  LAW. 

Crimes  committed  within  its  exclusive  jurisdiction 
within  the  States  are  by  statute  to  be  punished  in  the 
same  manner  as  such  crimes  are  punished  by  the  laws 
of  the  particular  States  where  they  are  committed.1 

If  a  statute  define  a  new  offence  or  prohibit  a  par- 
ticular act,  without  providing  any  mode  of  prosecution 
or  punishment,  the  common  law  steps  in  and  supplies 
the  mode,  —  by  indictment;  and  the  punishment,  by 
fine  and  imprisonment.2 

§  3.  Trifling  Offences  not  Indictable.  —  Some  viola- 
tions of  legal  duty  are  said  to  be  so  trifling  in  their 
character,  or  of  such  exclusive  private  interest,  that 
the  law  does  not  notice  them  at  all,  or  leaves  them  to 
be  dealt  with  by  the  civil  tribunals.3 

§  4.  Moral  Obliquity  not  Essential.  —  Moral  obliquity 
is  not  an  essential  element  of  crime,  except  so  far  as  it 
may  be  involved  in  the  very  fact  of  the  violation  of 
law.  What,  therefore,  is  criminal  in  one  jurisdiction 
may  not  be  criminal  in  another ;  and  what  may  be 
criminal  at  a  particular  period  is  often  found  not  to 
have  been  criminal  at  a  different  period  in  the  same 
jurisdiction.  The  general  opinion  of  society,  finding 
expression  through  the  common  law  or  through  special 
statutes,  makes  an  act  to  be  criminal  or  not  according 
to  the  view  which  it  takes  of  the  proper  means  of  pre- 

1  United  States  v.  Paul,  6  Pet.  (U.  S.)  141.  In  Ohio,  there  is  said 
to  be  no  criminal  common  law,  and  several  other  States  have  statutes 
modifying  the  common  law  in  some  particulars.  These  particulars 
are  not  within  the  scope  of  this  compendium.  They  are  pretty  fully 
stated  by  Mr.  Bishop,  1  Cr.  Law,  §  35,  and  notes. 

2  Com.  v.  Chapman,  13  Met.  (Mass.)  68  ;  State  v.  Fletcher,  5  N.  H. 
257  ;  State  v.  Patten,  4  Ired.  (N.  C.)  16  ;  Com.  v.  Piper,  7  Leigh  (Va.), 
657;  Keller  v.  State,  11  Md.  525. 

8  See  Reg.  v.  Kenrick,  per  Ld.  Denman,  5Q.  B.  62,  in  commenting 
upon  Rex  v.  Turner,  13  East,  228. 


GENERAL  PRINCIPLES.  3 

serving  order  and  promoting  justice.  Adultery  is  a 
crime  in  some  jurisdictions ;  while  in  others  it  is  left 
within  the  domain  of  morals.  Embezzlement,  which 
was  till  within  a  comparatively  recent  period  a  mere 
breach  of  trust,  cognizable  only  by  the  civil  courts,  has 
been  nearly,  if  not  quite,  universally  brought  by  statute 
into  the  category  of  crimes  as  a  modified  larceny.  The 
sale  of  intoxicating  liquors  is  or  is  not  a  crime,  accord- 
ing to  the  differing  views  of  public  policy  entertained 
by  different  communities. 

§  5.  Same  Subject.  Criminal  Intent.  —  Doubtless,  in 
the  earlier  history  of  the  common  law,  only  such  acts 
were  deemed  criminal  as  had  in  them  the  vicious  ele- 
ment of  an  unlawful  intent,  —  acts  which  were  mala  in 
se,  and  indicated  some  degree  of  moral  obliquity.  But 
this  quality  has  long  since  ceased  to  be  essential,  and 
at  the  present  day  mala  prohibit  a  —  acts  made  crimi- 
nal by  statute,  many  of  them  unobjectionable  in  a 
moral  aspect,  except  so  far  as  the  doing  an  act  pro- 
hibited by  law  may  be  deemed  immoral  —  constitute 
no  inconsiderable  portion  of  the  category  of  crimes. 

To  illustrate  :  The  statute  prohibits  the  sale  of 
adulterated  milk.  A  person  who  sells  adulterated 
milk  without  knowing  it  to  be  adulterated,  or  even 
honestly  believing  it  to  be  pure,  is,  nevertheless,  guilty 
of  a  crime.  There  are  many  acts  which  the  law,  look- 
ing to  the  protection  of  the  community,  seeks  to  pre- 
vent ;  making  it  perilous,  by  making  it  criminally 
punishable,  to  do  them.  As  every  one  is  presumed  to 
know  the  law,  every  one  knows  that  the  sale  of  adul- 
terated milk  is  prohibited.  No  one  is  bound  to  sell 
milk  ;  but  if  he  do,  he  is  bound  to  know  whether  it  is 
adulterated  or  not ;  and  if  he  intentionally  sells  milk 


4  CRIMINAL  LAW. 

without  having  correctly  determined  beforehand,  as  it 
is  in  his  power  to  do,  whether  it  is  or  is  not  of  the 
character  prohibited,  he  is  so  far  at  fault,  and  to  that 
extent  guilty  of  a  neglect  of  legal  duty.1  For  the  same 
reason,  the  sale  of  a  single  glass  of  intoxicating  liquor, 
even  for  a  praiseworthy  purpose,  may  or  may  not  be 
criminal  in  different  jurisdictions,  and  at  different 
times  in  the  same  jurisdiction,  according  as  the  legis- 
lature, in  the  interest  of  the  public  good,  may  provide. 
The  hardship  of  requiring  that  a  person  shall  know  a 
fact  is  no  greater  than  to  require  that  he  shall  know 
the  law.  In  other  words,  where  the  statute  clearly 
so  intends,  ignorance  of  a  fact  is  no  more  an  excuse 
than  ignorance  of  law.2 

§  6.  Intent.  Motive. — Intent  must  not  be  confounded 
with  motive.  The  intent  applies  to  and  qualifies  the 
act.  Motive  is  that  which  leads  to  the  act.  And 
while  it  is  essential,  except  as  heretofore  stated,3  that 
the  intent  to  commit  the  crime  should  appear,  either 

1  Com.  v.  Waite,  11  Allen  (Mass.),  264. 

2  Ex  parte  Baronnet,  1  E.  &  B.  1 ;  Rex  v.  Bailey,  R.  &  R.  C.  C.  1 ; 
Com.  v.  Boynton,  2  Allen  (Mass.),  160.  Upon  the  general  subject, 
see,  in  addition  to  the  cases  already  cited,  Judge  Bennett's  note  to 
Rex  v.  Wheatly,  1  Lead.  Cr.  Cas.  1  ;  United  States  v.  Anthony,  and 
Mr.  Green's  note,  2  Cr.  L.  R.  215 ;  Queen  v.  Mayor,  &c,  L.  R. 
3  Q.  B.  629;  State  v.  Smith,  10  R.  I.  258  ;  Barnes  v.  State,  19  Conn. 
398;  Ulrick  v.  Com.,  6  Bush  (Ky.),  400;  Reg.  v.  Prince,  L.  R.  2 
C.  C.  R.  151 ;  s.  c.  1  Am.  Cr.  Rep.  1 ;  Steph.  Dig.  Cr.  L.  p.  20, 
art.  34  ;  State  v.  Goodnow,  65  Me.  30 ;  Lawrence  v.  Com.  ( Va.),  6  Reptr. 
285;  McCutcheon  v.  People,  69  111.  601.  There  are  cases  to  the  con- 
trary (Stern  v.  State,  53  Ga.  229;  Binney  v.  State,  8  Ohio,  230; 
Marshall  v.  State,  49  Ala.  21;  Williams  v.  State,  48  Ind.  306), 
which  Mr.  Bishop  approves.  But  by  the  settled  law  of  England,  and 
the  great  weight  of  authority  in  this  country,  the  doctrine  of  the  text 
is  the  better  law.     See  12  Am.  Law  Rev.  469. 

3  See  ante,  §  5. 


GENERAL  PRINCIPLES.  5 

expressly  or  by  implication,  no  such  necessity  exists  as 
to  motive,  and  it  need  not  be  proved.1 

If,  therefore,  the  intent  to  violate  the  law  exists,  the 
motive  is  immaterial.  For  example,  it  is  an  indictable 
offence  at  common  law  to  enter,  without  the  consent 
of  the  owner,  an  unconsecrated  burial-ground,  and  dig 
up  and  carry  away  a  corpse  buried  there,  though  it  be 
done  openly,  decently,  and  properly  by  a  relative,  and 
from  a  sense  of  filial  duty  and  religious  obligation.2 
Nor  will  it  be  any  justification  for  a  person  who  inten- 
tionally does  an  act  which  the  law  prohibits,  —  voting, 
for  instance,  —  that  he  conscientiously  believed  he 
had  a  right  to  vote,  notwithstanding  the  statute  ; 3  nor 
that  the  act  would  be  harmless  ; 4  nor  that  it  would 
be  for  the  public  benefit.5  Nor  is  it  of  avail  that  the 
real  purpose  is  other  than  to  violate  the  law,  the 
natural  result  of  the  act  being  to  violate  the  law,  —  as 
where  one  assaults  an  officer  in  the  discharge  of  his 
duty,  the  purpose  not  being  to  hinder  the  officer  in  the 
discharge  of  his  duty,  but  to  inflict  upon  him  personal 
chastisement,  on  account  of  some  private  grief.  If 
the  act  results  in  the  obstruction  of  the  officer  in  the 
discharge  of  his  duty,  the  offender  is  guilty  of  the 
latter  offence.6 

§  7.    Intent  presumed  from  the  Unlawful  Act.  — When 

1  Com.  v.  Hudson,  97  Mass.  665 ;  Baalam  v.  State,  17  Ala,  451  ; 
People  v.  Robinson,  1  Park.  (N.  Y.)  C.  R.  649. 

2  Reg.  v.  Sharpe,  7  Cox  C.  C.  214. 

8  United  States  v.  Anthony,  11  Blatch.  C  Ct.  200.  See  also  same 
case,  2  Green's  Cr.  Law  Rep.  208  and  note. 

4  United  States  v.  Bott,  id.  346 ;  8.  c.  2  Green's  Cr.  Law  Rep.  239. 

6  Respublica  v.  Caldwell,  1  Dall.  (U.  S.)  150;  Com.  v.  Belding, 
13  Met.  (Mass.)  10. 

6  United  States  v.  Kerr,  5  Mason  C.  Ct.  453. 


6  CRIMINAL  LAW. 

one  does  an  unlawful  act,  he  is  by  the  law  presumed  to 
have  intended  to  do  it,  and  to  have  intended  its  ordi- 
nary and  natural  consequences,  on  the  ground  that 
these  must  have  been  within  his  contemplation,  if  he 
is  a  sane  man,  and  acts  with  the  deliberation  which 
ought  to  govern  men  in  the  conduct  of  their  affairs.1 
He  is  none  the  less  responsible  for  the  natural  conse 
quences  of  his  criminal  act,  because  from  ignorance, 
or  carelessness,  or  neglect,  precautionary  measures  are 
not  taken  to  prevent  those  consequences.2  In  some 
cases,  as  we  have  already  seen,3  this  presumption  is 
conclusive  as  to  the  intended  consequences,  and  can- 
not be  met  by  counter  proof.  As  a  general  rule,  how- 
ever, in  those  cases  where  an  act  in  itself  not 
criminal  becomes  so  only  if  done  with  a  particular 
intent,  there  the  intent  must  be  proved  by  the  prosecu 
tion  ;  while  in  those  cases  where  the  act  is  in  itself 
criminal,  the  law  implies  a  criminal  intent,  and  leaves 
it  open  to  the  defendant  to  excuse  or  justify.4  But 
the  unlawfulness  of  the  act  is  a  sufficient  ground  upon 
which  to  raise  the  presumption  of  criminal  intent.5  It 
is,  of  course,  always  open  to  proof  that  there  was  no 
intention  to  do  any  act  at  all,  whether  lawful  or  unlaw- 
ful ;  as  that  the  person  charged  was  insane,  or  was  com- 
pelled to  the  act  against  his  will,  or  was  too  young  to 

1  Com.  v.  Webster,  5  Cush.  (Mass.)  305;  Rex  v.  Mazagora,  R.  &R. 
291 ;  United  States  v.  Taintor,  11  Blatch.  C.  Ct.  374 ;  s.  c.  2  Green's 
Cr.  Law  Rep.  241  and  note. 

2  State  v.  Bantley,  6  Reptr.  (Conn.)  72;  Com.  v.  Hackett,  2  Allen 
(Mass.),  136;  Regina  v.  Holland,  2  M.  &  Rob.  351 ;  Rex  v.  Reading, 
1  Keb.  17.  8  Ante,  §  5. 

*  Rex  v.  Woodfall,  5  Burr.  2667  ;  State  v.  Goodenow,  65  Me.  30 ; 
SGreenl.  Ev.  §21. 

6  Com.  v.  Randall,  10  Gray  (Mass.),  34  ;  United  States  v.  Taintor, 
ubi  supra. 


GENERAL  PRINCIPLES.  7 

be  capable  of  entertaining  a  criminal  intent.  So,  at 
Least  when  the  act  is  criminal  in  its  nature,  and  not 
peremptorily  prohibited  by  the  statute,  it  may  be 
shown  that  it  was  done  through  mistake  ;  as  where 
one  drives  off  the  sheep  of  another,  which  are  in  his 
own  flock  without  his  knowledge,1  or,  intending  to 
shoot  a  burglar,  by  mistake  shoots  one  of  his  own 
family.2 

§  8.  Special  intent.  — When  a  special  intent  is  made 
an  ingredient  in  crime, —  as  where  one  is  charged  with 
an  assault  with  intent  to  murder,  or  to  commit  rape, 
or  with  a  burglarious  entering  with  intent  to  steal,  —  the 
offence  is  not  committed  unless  the  accused  is  actuated 
by  the  specific  intent  charged.  The  intent  to  commit 
another  crime,  though  of  equal  grade  and  of  the  same 
character  with  the  one  charged,  will  not  constitute  the 
offence  charged.3 

This  rule  is  based  upon  the  fact  that  the  offences 
charged  and  proved  are  not  identical  ;  and  on  an  indict- 
ment for  one  offence  no  man  can  be  found  guilty  of 
another  or  different  offence,  unless  the  latter  is  part 
of  and  embraced  in  the  former. 

When,  however,  the  crime  charged  necessarily  em- 
braces a  lesser  offence  as  part  and  parcel  of  it,  and  the 
latter  is  described  in  the  indictment  with  such  distinct- 
ness that  it  would  constitute  a  good  separate  indict- 
ment for  that  offence,  the  accused,  under  the  indictment 
charging  the  greater  and  the  lesser,  may  be  found 
guilty  of  the  latter.  Thus,  on  an  indictment  for  an 
assault  with  intent  to  murder,  the  assaull  being  well 
charged,  and  the  intent  not  being  proved,  the  defendant 
may  be  found  guilty  of  an  assault.     This  was  the  com* 

i  1  Hale  P.  C.  507.  »  1  Hale  1'.  C.  42. 

3  Rex  r.  Boyer,  1  Moody  C.  C.  29;  Note  to  United  States  i\  Taintor. 
2  Green's  Cr.  Law  Rep.  :>44. 


8  CRIMINAL  LAW. 

mon  law  when  both  offences  were  of  the  same  grade, 
and  is  now  the  law  by  statute  in  England,  and  very 
generally  in  the  United  States,  when  the  offences  are 
of  different  grades.1 

§  9.  Malice.  —  Although  in  a  popular  sense  malice 
means  hatred,  hostility,  or  ill-will,  yet  in  a  legal  sense 
it  has  a  much  broader  signification.  In  the  latter 
sense  it  is  the  conscious  violation  of  the  law  to  the  pre- 
judice of  another.  It  is  evil  intent  or  disposition, 
whether  directed  against  one  individual  or  operating 
generally  against  all,  from  which  proceeds  any  unlaw- 
ful and  injurious  act,  committed  without  legal  justi- 
fication. Actions  proceeding  from  a  bad  heart  actuated 
by  an  unlawful  purpose,  or  done  in  a  spirit  of  mischief, 
regardless  of  social  duty  and  the  rights  of  others,  are 
deemed  by  the  law  to  be  malicious.2  The  voluntary 
doing  an  unlawful  act  is  a  sufficient  ground  upon  which 
to  raise  the  presumption  of  malice.  And  so  if  the  act 
be  attended  by  such  circumstances  as  are  the  ordinary 
symptoms  of  a  wicked  and  depraved  spirit,  the  law 
will,  from  these  circumstances,  imply  malice,  without 
reference  to  what  was  passing  in  the  mind  of  the 
accused  at  the  time  when  he  committed  the  act.3 

Envy  and  hatred  both  include  malice ;  but  the  latter 
may  exist  without  either,  and  is  a  more  general  form 
of  wickedness.  As  to  the  proof  of  malice  and  the 
degree  thereof  necessary  to  constitute  specific  crimes, 
more   will  be   said    hereafter,  as   occasion   requires.4 

i  Reg.  v.  Bird,  5  Cox  C  C.  20;  Com.  v.  Roby,  12  Pick.  (Mass.), 
496 ;  1  Bishop  Cr.  Law,  §  809. 

2  2  Fost.  Cr.  Law,  256;  Ferguson  v.  Kinnoul,  9  C.  &  F.  302,  321 ; 
Com.  v.  Webster,  5  Cush.  (Mass.)  305;  State  v.  Decklotts,  19  Iowa. 
447. 

8  State  v.  Smith,  2  Strobh.  (S.  C.)  77. 

4  See  Arson,  Homicide,  and  Malicious  Mischief. 


GENERAL  PRINCIPLES.  8 

Something  will  also  be  said  under  Homicide  of  tho 
not  now  very  material  distinction  between  express  and 
implied  malice. 

§  10.  Knowledge  presumed.  —  Knowledge  of  the 
criminal  law  on  the  part  of  every  person  capax  doli 
within  its  jurisdiction  is  conclusively  presumed,  upon 
grounds  essential  to  the  maintenance  of  public  order. 
This  fact,  therefore,  is  always  taken  for  granted. 
Ignorance  of  the  law  excuses  no  one.  And  this  prin- 
ciple is  so  absolute  and  universal,  that  a  foreigner 
recently  arrived,  and  in  point  of  fact  not  cognizant  of 
the  law,  is  affected  by  it.1  It  rests  upon  considera- 
tions of  public  policy,  the  chief  of  which  is  that  the 
efficient  administration  of  justice  would  become  im- 
practicable, were  the  government  obliged  to  prove  in 
every  case  that  the  defendant  actually  had  knowledge 
of  the  law. 

§  11.  When  the  Meaning  of  the  Law  is  uncertain. — 
There  are  cases,  however,  when  there  is  doubt  as  to 
the  interpretation  of  the  law,  in  which  it  has  been  held 
that  acting  under  a  mistaken  opinion  as  to  its  purport 
may  be  an  excuse.  Thus,  it  is  said  that  when  the  act 
done  is  malum  in  se,  or  when  the  law  which  has  been 
infringed  is  settled  and  plain,  the  maxim,  Ignorant ia 
legis  neminem  excusat,  will  be  applied  in  its  rigor  ;  but 
when  the  law  is  not  settled,  or  is  obscure,  and  when 
the  guilty  intention,  being  a  necessary  constituent  of 
the  particular  offence,  is  dependent  on  a  knowledge 
of  the  law,  or  of  its  existence,  —  as  where  one  takes 
property  believed  to  be  his  own  under  a  claim  of  right, 
in  ignorance  of  the  existence  of  a  law  which  vests  the 


1  Ex  parte  Baronnet,  1  E.  &  B.  1 ;  Kex  v.  Esop,  7  C.  &  P. 


456. 


10  CRIMINAL  LAW. 

property  in  another;1  or  takes  illegal  fees;2  or  ille- 
gally votes,3  under  a  mistake  as  to  the  meaning  of 
the  law,  —  this  rule,  if  enforced,  would  be  misapplied. 
Whenever,  therefore,  a  special  mental  condition  con- 
stitutes a  part  of  the  offence  charged,  and  such  con- 
dition depends  on  the  fact  whether  the  party  charged 
had  certain  knowledge  with  respect  to  matters  of  law, 
the  fact  of  the  existence  of  such  knowledge  is  open  to 
inquiry. 

But  these  cases  do  not  militate  against  the  doctrine 
heretofore  stated,  where  the  real  question  is  whether 
the  statute  clearly  intends  to  make  the  act  criminal, 
without  reference  to  the  question  of  knowledge.4 

CRIMINAL  CAPACITY. 
§  12.    Who  may  become  Criminal.  —  No  person  can 

be  guilty  of  a  crime,  unless  he  has  both  mental  and 
physical  capacity. 

§  13.  infants,  therefore,  are  not  amenable  to  the 
criminal  law  until  they  have  reached  that  degree  of 
understanding  which  enables  them  to  appreciate  the 
quality  of  the  act.  The  law  fixes  this  limit  arbitrarily, 
for  the  sake  of  convenience,  at  the  age  of  seven  years, 
and  will  not  listen  to  evidence  that  a  person  below 
this  age  is  capable  of  understanding  the  quality  of  his 
act.     Between  the  ages  of  seven  and  fourteen,  with 

i  Rex  v.  Hall,  3  C.  &  P.  409;  Reg.  v.  Reed,  C.  &  M.  306. 

2  State  v.  Cutter,  36  N.  J.  125;  People  v.  Whalley,  6  Cow.  (N.  Y.) 
661 ;  Halstead  v.  State  (N.  J.),  1  Cr.  L.  Mag.  3»00. 

3  Com.  v.  Bradford,  9  Met.  (Mass.)  268. 

4  Ante,  §  5.  See  also,  as  to  tlie  application  of  this  maxim,  The 
Queen  v.  Mayor  of  Tewksbury,  L.  R.  3  Q.  B.  029,  and  Mr.  Green's 
note  to  United  States  v.  Anthony,  2  Cr.  Law  Rep.  215. 


GENERAL  PRINCIPLES.  11 

some  exceptions,  the  presumption  is  that  the  infant 
lacks  discretion  or  criminal  capacity,  and  the  burden 
of  proof  that  he  does  is  upon  the  prosecutor.  If 
there  be  no  evidence  upon  this  point,  the  prosecu- 
tion fails.  There  are  two  generally  admitted  excep- 
tions to  this  rule, —  a  female  under  the  age  of  ten 
years  being  conclusively  presumed  to  be  incapable  of 
consenting  to  sexual  intercourse,  and  a  male  under 
fourteen  being  conclusively  presumed  to  be  incapable 
of  committing  rape.1  In  Ohio,  this  presumption  is 
held  to  be  disputable.2  And  in  Massachusetts,  it  has 
been  held  by  a  divided  court  that  a  boy  under  the  age 
of  fourteen  may  be  guilty  of  an  assault  with  intent  to 
commit  rape,  on  the  theory  that  penetration  only  is 
necessary  to  the  consummation  of  the  crime.3  In 
California,  by  statute,  all  infants  under  fourteen  are 
incapable.4 

After  the  age  of  fourteen,  the  presumption  is  that 
the  infant  has  criminal  capacity,  and  the  presumption  is 
sufficient,  if  not  met  by  counter  proof,  to  warrant  the 
jury  in  finding  the  fact.  But  the  defendant  may  prove 
his  incapacity.6  An  exception  to  this  last  rule,  in  the 
nature  of  physical  incapacity,  is  where  an  infant  over 
fourteen  fails  in  some  public  duty,  as  to  repair  a  high- 

i  Reg.  v.  Phillips,  8  C.  &  P.  736 ;  Reg.  v.  Jordan,  9  C.  &  P.  118. 

2  Williams  v.  State,  14  Ohio,  222. 

8  Com.  v.  Green,  2  Pick.  380.  But  see  also,  upon  this  point,  Com. 
v.  Lanigan,  2  Boston  Law  Reporter,  49,  Thatcher,  J. ;  People  v.  Ran- 
dolph, 2  Parker  C.  R.  (N.  Y.)  174;  State  v.  Sam,  Winston  (N.  C), 
800. 

*  Rev.  Stat.  1852,  c.  99. 

6  Rex  v.  Owen,  4  C.  &  P.  236 ;  Marsh  v.  Loader,  14  C.  B.  v.  8. 
635 ;  Rex  t>.  York,  and  note,  1  Lead.  Cr.  Cas.  71 ;  Reg.  v.  Smith,  1 
Cox  C.  C.  260;  People  v.  Davis,  1  Wheeler  (N.  Y.)  C.  C.  230;  Com. 
v.  Mead,  10  Allen  (Mass.),  398  ;  State  v.  Learned,  41  Vt.  585. 


12  CRIMINAL  LAW. 

way.  In  this  case  he  is  held  incapable,  as  he  has 
not  command  of  his  fortune  till  he  arrives  at  his 
majority.1 

§  14.  Coercion.  Fraud.  —  Married  women  are  pre- 
sumed to  be  so  far  under  the  control  and  coercion  of 
their  husbands,  that  in  many  cases  they  are  not  held 
responsible  for  crimes  committed  in  their  presence.2 
But  this  presumption  is  only  prima  facie,  and  may 
be  rebutted  by  evidence  that  the  woman  was  not 
coerced,  but  acted  voluntarily,  according  to  her  own 
pleasure.3  There  are  exceptions  to  this  incapacity 
of  married  women,  upon  which,  however,  the  authori- 
ties are  not  agreed.  She  seems  to  be  responsible  for 
treason  and  murder,  by  the  general  consent  of  the 
authorities,  and  perhaps  for  robbery,  perjury,  and 
forcible  and  violent  misdemeanors  generally.4  But 
there  are  cases  of  a  non-consenting  will,  as  where  one 
is  compelled,  by  fear  of  being  put  to  death,  to  join 
a  party  of  rebels,  or  is  entrapped  into  becoming  the  in- 
nocent agent  of  another,  whereby  a  person  unwittingly 
or  unwillingly,  rather  than  through  incapacity,  become-; 
the  instrument  of  crime  wielded  by  the  hand  of  another. 
The  will  is  constrained  by  fear  or  deceived  by  fraud 
into  what  is  only  an  apparent  consent.5  And  it  has 
been  said  that  the  pressure  of  circumstances  may  be  so 
great  as  to  release  one  from  criminal  responsibility  for 

1  Hale  P.  C.  20.  2  1  Hale  P.  C.  14. 

8  Reg.  v.  Pollard,  8  C.  &  P.  553 ;  State  v.  Cleaves,  59  Me.  295 ; 
Com.  v.  Butler,  1  Allen  (Mass.),  4  ;  Rex  v.  Stapleton,  Jebb  C.  C.  93; 
Miller  v.  State,  25  Wis.  384 ;  2  Green's  Cr.  Law  Rep.  286,  note. 

4  See  the  authorities  collected  in  note  to  Cora.  v.  Neal,  1  Lead.  Cr. 
Cas.  81  ;  3  Greenl.  Ev.  §  7,  13th  ed. 

6  1  Foster  Cr.  Law,  14;  1  Hale  P.  C.  50;  Steph.  Dig.  Cr.  Law, 
art.  31. 


GENERAL  PRINCIPLES.  13 

an  act  which,  but  for  the  pressure,  would  be  a  crime  ; 
as  where  a  council,  without  authority,  depose  and  im- 
prison a  governor,  to  prevent  irreparable  mischief  to 
the  State ;  1  or  one  of  two  persons  swimming  in  the 
sea  supported  by  a  plank  thrusts  the  other  off,  if,  by 
so  doing,  one  would  be  saved,  and  by  not  so  doing, 
both  would  be  lost.2  But  such  cannot  be  said  to  be 
the  established  law.3 

§  15.  CorporationB  being  impersonal,  and  merely 
legal  entities,  without  souls,  as  it  has  been  said,  though 
incapable  of  committing  those  crimes  which  can  only 
proceed  from  a  corrupt  mind,  may,  nevertheless,  be 
guilty  of  a  violation  not  only  of  statutory  but  common- 
law  obligations,  both  by  omission  and,  by  the  greater 
weight  of  authority,  by  commission.  They  cannot  com- 
mit an  assault,  though  they  may  be  held  civilly  responsi- 
ble for  a  tort  committed  by  their  agent.4  Nor  can  they 
commit  any  crime  involving  a  criminal  intent.  But 
they  may  create  a  nuisance,  through  the  acts  of  their 
agents,  and  by  the  very  mode  of  their  operations  ;  in 
which  case  they  are  subject  to  indictment  and  punish- 
ment  bj_fing.  or  even  Uie  ^abrogation  of  their  charter,  — 
the  only  punishments  applicable  to  a  corporation  :  the 
latter  a  sort  of  capital  punishment,  inflicted  when  the 
corporation  has  forfeited  the  right  to  live.5 

A  corporation  is  also  indictable  for  negligence  in 
the  non-performance  of  the  duties  imposed  upon  it  by 

1  Rex  v.  Stratton,  '21  St.  Tr.  1041. 

2  Bacon's  Maxims,  No.  5.  See  also  Com.  v.  Holms,  1  Wall.  Jr, 
(Pa.)  1. 

3  Steph.  Dig.  Cr.  Law,  art.  32 ;  Wharton  Horn.  §§  5G0,  561. 
«  Angell  &  Ames  on  Corporations,  §§  311,  387. 

8  Reg.  v.  Railway  Co.,  9  Q.  B.  315;  Delaware  Canal  Co.  v.  Com., 
60  Pa.  St.  307  ;  1  Bishop  Cr.  Law,  §§  420,  422. 


14  CRIMINAL  LAW. 

its  charter,  or  otherwise  by  law.1  It  has  been  held  in 
some  cases  that  a  corporation  is  not  indictable  for  a 
misfeasance,2  —  in  opposition,  however,  to  tha  great 
weight  of  authority.3 

§  16.  insane  Persons. — Insanity,  under  which  the 
law  includes  all  forms  of  mental  disturbance,  whether 
lunacy,  idiocy,  dementia,  monomania,  or  however 
otherwise  its  special  phenomena  may  be  denominated, 
is  another  ground  upon  which  persons  are  held  inca- 
pable of  committing  a  crime.  Insanity  is  mental  un- 
soundness. It  exists  in  different  forms  and  degrees. 
A  higher  degree  of  insanity  is  requisite  to  protect  a 
person  from  the  consequences  of  a  criminal  violation 
of  law,  than  to  relieve  him  from  the  obligation  of  a 
contract.  In  order  to  protect  him  in  the  former  case, 
his  mind  must  be  affected  by  disease  to  that  extent 
that  he  cannot  understand  the  nature,  character,  or, 
consequences  of  the  act.  A  partial  "Insanity,  short  of 
this,  will  not  relieve  him  from  responsibility.  If  he 
has  sufficient  mental  capacity  to  know  that  the  act 
which  he  is  about  to  commit  is  wrong  and  deserves 
punishment,  and  to  apply  that  knowledge  at  the  time 
when  the  act  is  committed,  he  is  not  in  the  eye  of  the 
criminal  law  insane,  but  is  responsible.  All  persons 
whose  minds  are  diseased  or  impaired  to  the  extent 
named,  and  all  whose  minds  are  so  weak  —  idiots, 
lunatics,  and  the  like  —  that  they  have  not  the  suffi- 

i  Reg.  v.  Railway  Co.,  3  Q.  B.  223 ;  People  v.  Albany,  11  Wend. 
(N.  Y.)  589. 

2  State  v.  Great  Works,  &c,  20  Me.  41 ;  Com.  v.  Swift  Run,  &e., 
2  Va.  Cas.  362. 

8  See  Com.  v.  Proprietors,  &c,  2  Gray  (Mass.),  839;  1  Bishop, 
Cr.  Law,  §§  420,  422. 


GENERAL  PRINCIPLES.  15 

ciency  of  understanding  and  capacity  before  stated, 
come  under  the  protection  of  irresponsibility.1 

§  17.  Irresistible  Impulse.  —  Insanity  also  sometimes 
appears  in  the  courts  in  the  form  of  what  is  called  an 
irresistible  impulse  to  commit  crime.  This  is  recog- 
nized by  the  courts  if  it  is  the  product  of  disease  ; 
since  an  act  produced  by  diseased  mental  action  is  not 
a  crime.  But  an  irresistible  impulse  is  not  a  defence, 
unless  it  produced  the  act  of  killing.  Yielding  to  an 
insane  impulse  which  could  have  been  successfully  re- 
sisted is  criminal.2  The  man  who  has  a  mania  for 
committing  rape,  but  will  not  do  it  under  such  circum- 
stances that  there  is  obvious  danger  of  detection,3  and 
the  man  who  has  a  mania  for  torturing  and  killing 
children,  but  always  under  such  circumstances  as  a 
sane  man  would  be  likely  to  adopt,4  in  order  to  avoid 
detection,  are  not  entitled  to  its  shelter.  This  plea  is 
to  be  received  only  upon  the  most  careful  scrutiny.5 

§  18.    Emotional  Insanity,   which   is   a  newly  disCOV 

ered,  or  rather  invented,  phase  of  irresistible  impulse, 
and  is  nothing  but  the  fury  of  sudden  passion  driving 

1  McNaughten's  Case,  10  C.  &  F.  (H.  of  L.)  200 ;  Com.  v.  Rogers, 
7  Met.  500  ;  Freeman  v.  People,  4  Denio  (N.  Y.),  9  ;  State  v.  Pike,  49 
N.  H.  398;  Blackburn  v.  State,  23  Ohio  St.  146;  United  States  v. 
McGlue,  1  Curtis  (U.  S.  C.  Ct.),  8;  State  v.  Huting,  21  Mo.  464; 
Spann  v.  State,  47  Ga.  553;  Brown  v.  Com.,  78  Vs..  St.  122 ;  State 
v.  Johnson,  40  Conn.  136 ;  Flanagan  v.  People,  52  N.  Y.  467  ;  State  v. 
Richards,  39  Conn.  501. 

2  State  v.  Jones,  50  N.  H.  369 ;  State  v.  Felter,  25  Iowa,  67. 

8  See  testimony  of  Blackburn,  J.,  before  the  Parliamentary  Com 
mittee  on  Homicide,  cited  in  Wharton  on  Homicide.  §  582,  note. 

4  Com.  v.  Pomeroy,  117  Mass.  143. 

6  Com.  v.  Mosler,  4  Barr  (Pa.),  266;  United  States  v.  Hewson, 
7  Boston  Law  Reptr.  361  (U.  S.  C.  Ct.),  Story,  J.  ;  Scott  v.  Com., 
4  Met.  (Ky.)  227;  Hopps  v.  People,  31  111.  385. 


16  CRIMINAL  LAW. 

a  person,  otherwise  sane,  into  the  commission  of  crime, 
is  utterly  repudiated  by  the  courts  as  a  ground  of  irre- 
sponsibility.1 

§  19.  Moral  Insanity,3  or  that  obliquity  which  leads 
men  to  commit  crime  from  distorted  notions  of  what 
is  right  and  what  is  wrong,  and  impels  them  generally 
and  habitually  in  a  criminal  direction,  as  distinguished 
from  mental  insanity,  though  appearing  to  have  the 
sanction  of  the  medical  faculty  as  a  doctrine  founded 
in  reason  and  the  nature  of  things,  is  scouted  by  many 
of  the  most  respectable  courts  as  unfounded  in  law  ; 3 
and  although  accepted  to  a  limited  extent  by  others,  is 
treated  even  by  them  as  a  doctrine  dangerous  in  all  its 
relations,  and  to  be  received  only  in  the  clearest  cases.4 
It  may  also  be  observed,  that  moral  insanity  is  some- 
times confounded  with,  and  sometimes  distinguished 
from,  irresistible  impulse.  In  Pennsylvania,  for  in 
stance,  very  recently,  the  existence  of  such  a  kind  of 
insanity  seems  to  have  been  recognized ;  but  it  was 
said  to  bear  a  striking  resemblance  to  vice,  and  ought 
never  to  be  admitted  as  a  defence  without  proof  that 
the  inclination  to  kill  is  irresistible,  and  that  it  does 
not  proceed  from  anger  or  other  evil  passion.5    Hence 

i  State  v.  Johnson,  40  Conn.  136;  Willis  v.  People,  5  Parker  C  C. 
(N.  Y.)  621 ;  People  v.  Bell,  49  Cal.  485.  See  also  a  very  vigorous 
article  upon  the  subject,  7  Alb.  Law  Jour.  233.  Upon  the  general 
subject  of  insanity  as  a  defence,  see  Com.  v.  Rogers,  1  Lead.  Cr.  Cas. 
94,  and  note. 

2  The  French  call  it  "  moral  self-perversion." 

3  Humphrey  v.  State,  45  Ga.  190  ;  Farrer  v.  State,  2  Ohio  St.  54  ; 
State  v.  Brandon,  8  Jones  (N.  C.),463  ;  Choice  v.  State,  31  Ga.  424 ; 
People  v.  McDowell,  47  Cal.  134;  United  States  v.  Holmes,  1  Clifford 
(U.  S.  C  Ct.),  198 ;  State  v.  Lawrence,  57  Me.  574 ;  and  cases  before 
cited  on  the  general  topic,  ante,  §  16.  See  also  Wharton  on  Homi- 
cide, §  583. 

4  See  Wharton  on  Homicide,  §  583  et  seq. 

6  Com.  v.  Sayre  (Pa.),  5  Weekly  Notes  of  Cas.  424. 


GENERAL  PRINCIPLES.  17 

many  cases  appear  to  be  in  conflict  which  in  fact  are 
not  irreconcilable.  The  absence  of  clear  definitions  is 
a  serious  embarrassment  in  the  discussion  of  this 
subject. 

§  20.  insanity,  Proof  of.  —  As  a  question  of  evidence, 
the  burden  of  proof  of  sanity  is  ujiQiiJlia^ovej;nment 
in  all  cases.  The  act  must  not  only  be  proved,  but  it 
must  also  be  proved  that  it  is  the  voluntary  act  of  an 
intelligent  person.  Where  the  will  does  not  co-operate, 
there  is  no  intent.  But  as  sanity  is  the  normal 
state  of  the  human  mind,  the  law  presumes  every  one 
sane  till  the  contrary  is  shown  ;  and  this  presumption, 
in  the  absence  of  evidence  to  the  contrary,  is  sufficient 
to  sustain  this  burden  of  proof.  If,  however,  the  de- 
fendant can,  by  the  introduction  of  evidence,  raise  a 
reasonable  qlgubt  upon  the  question  of  sanity,  he  is  to 
be  acquitted.  This  is  the  general  rule,  supported  by 
the  great  weight  of  authority.1 

In  some  of  the  States,  however,  it  is  held  that  if  the 
prisoner  sets  up  insanity  in  defence,  he  must  prove  it 
by  a  preponderance  of  evidence,  or  it  is  of  no  avail. 
It  is  not  enough  for  him  to  raise  a  reasonable  doubt 
on  the  point.2  In  New  York,  the  authorities  seem  to 
be  conflicting.3 

In  New  Jersey,  it  seems  to  be  the  law  that  the  pris- 

1  Com.  v.  Pomeroy,  117  Mass.  143  ;  People  v.  Garbutt,  17  Mich.  9; 
State  v.  Crawford,  11  Kan.  32;  s.  c.  32  Am.  Law  Reg.  n.  s.  21  and 
note  ;  Polk  v.  State,  19  Ind.  170 ;  State  v.  Marler,  2  Ala.  43 ;  Dow  v. 
State,  3  Heisk.  (Tenn.)  348  ;  State  v.  Jones,  50  N.  H.  369. 

2  Lynch  v.  Com.,  77  Pa.  St.  205  ;  Kelley  v.  State,  3  S.  &  M.  (Miss.) 
518;  State  v.  Felter,  32  Iowa,  49  ;  People  v.  Best,  39  Cal.  GOO  ;  State 
v.  Lynch,  4  L.  &  Eq.  Reptr.  653  ;  Biswell  v.  Com.,  20  Gratt.  ( Va.)  866. 

8  Wagner  v.  People.  4  N.  Y.  609  ;  People  v.  McCann,  16  N.  Y.  58  ; 
Flannagan  v.  People,  52  N.  Y.  467. 

2 


18  CRIMINAL  LAW. 

oner  must  prove  the  defence  of  insanity  beyond  a  rea- 
sonable doubt.1 

§  21.  Voluntary  Drunkenness,  as  a  rule,  is  not  regarded 

by  the  law  as  an  excuse  for  the  commission  of  a  crime 
while  under  its  influence,  since  one  who,  under  such 
circumstances,  perpetrates  a  crime  is  deemed  to  have 
procured,  or  at  least  consented  to,  that  condition  of 
things  by  which  the  commission  of  the  crime  became 
more  probable.  Although  intoxication,  according  to 
its  degree,  may  cloud  or  eventually  obscure  the  reason 
for  the  time  being,  and  excite  the  passions  of  man,  if 
it  be  the  result  of  voluntary  and  temporary  indulgence, 
it  cannot  be  regarded  either  in  excuse,  justification,  or 
extenuation  of  a  criminal  act.  If  privately  indulged 
in,  it  may  not  be  a  crime  in  itself.  It  is,  nevertheless, 
so  far  wrongful  as  to  impart  its  tortious  character  to 
the  act  which  grows  out  of  it.2  It  was  said  by  Coke,3 
and  has  been  sometimes  repeated  by  text-writers  since, 
that  the  fact  of  intoxication  adds  aggravation  to  the 
crime  committed  under  its  influence ;  but  this  seems 
not  to  have  the  authority  of  any  well-adjudged  case, 
nor  to  be  well  founded  in  reason.  It  cannot,  for  in- 
stance, aggravate  an  offence  which  in  law  is  only 
manslaughter  if  committed  by  a  sober,  into  murder  if 
done  by  a  drunken,  man  ;  nor  generally  lift  a  minor 
offence  into  the  category  of  a  higher  grade.  If  intoxi- 
cation be  a  crime,  it  may  be  punished  distinctively  ; 
but  the  punishment  of  intoxication  should  not  be  added 
to  that  of  the  crime  committed  under  its  influence.    If 

1  State  v.  Spenser,  1  Zab.  202. 

2  Beverly's  Case,  4  Co.  123  b,  125  a  ;  Com.  v.  Hawkins,  3  Gray 
(Mass.),  463  ;  People  v.  Garbutt,  17  Mich.  9 ;  Rafferty  v.  People,  66  111. 
118  ;  People  v.  Lewis,  36  Cal.  531. 

8  Coke  Litt.  247. 


GENERAL  PRINCIPLES.  19 

this  were  permissible,  greater  responsibility  would 
attach  to  the  intoxicated  than  to  the  sober  man,  in 
respect  of  the  particular  offence.1 

§  22.  Intoxication.  Malice.  Design.  —  When,  how- 
ever, in  the  course  of  a  trial,  a  question  arises  as  to  the 
particular  state  of  the  mind  of  the  accused  at  the 
time  when  he  committed  a  crime,  —  as,  for  instance, 
whether  he  entertained  a  specific  intent,  or  had  ex- 
press malice,  or  was  acting  with  deliberation,  —  the 
fact  of  intoxication  becomes  an  admissible  element 
to  aid  in  its  determination ;  not  as  an  excuse  for  the 
crime,  but  as  a  means  of  determining  its  degree. 
rIf  a  man  be  so  drunk  as  not  to  know  what  he  is  doing, 
the  is  incapable  of  forming  any  specific  intent.2 

But  the  presumption  that  a  man  intends  the  natural 
and  probable  consequences  of  his  act  is  as  applicable 
to  the  drunken  as  to  the  sober  man  ;  and  the  capacity 
to  form  the  intent  to  shoot  with  a  deadly  weapon  im- 
plies the  capacity  to  form  the  intent  to  kill.3 

§23.  Delirium  Tremens.  Mental  Disease.  —  Delirium 
tremens  is  rather  a  result  of  intoxication,  than  intox- 
ication itself,  and  is  regarded  by  the  law  as  a  disease 
of  the  mind,  —  a  temporary  insanity.  This,  like 
any  other  mental  disease  induced  by  long  and  exces- 
sive indulgence  which  impairs  the  mind  or  controls 
its  operations  to  such  an  extent  that  the  person 
afflicted    cannot   distinguish   right   from  wrong,   and 

1  Molntyre  v.  People,  38  111.  514. 

2  Jones  v.  Commonwealth,  75  Pa.  St.  403 ;  Roberts  v.  People,  19 
Mich.  401 ;  State  v.  Johnson,  40  Conn.  136 ;  Malone  v.  State,  49  Ga. 
210;  Mclntyre  v.  People,  38  111.  514  ;  State  v.  Garvey,  11  Minn.  154  ; 
People  v.  Robinson,  2  Park.  C.  C.  (N.  Y.)  205;  Schlencher  v.  State 
(Neb.),  8  Reptr.  207;  State  v.  Bell,  29  Iowa,  316. 

8  Marshall  t;.  State  (Ga.),  5  Reptr.  647. 


20  CRIMINAL  LAW. 

has  not  the  capacity  to  know  what  he  does,  may 
relieve  from  responsibility.  Though  one  may  volun- 
tarily and  of  purpose  become  intoxicated,  and  so  be 
held  responsible  for  the  natural  consequences  of  the 
condition  which  he  has  sought,  he  does  not  intend  to 
become  delirious  or  demented.1 

§  24.  Involuntary  Intoxication,  or  that  which  is  in- 
duced by  the  fraud  or  mistake  of  another,  —  as  when 
one  is  deceived  into  drinking  an  intoxicating  bever- 
age against  his  will,  or  by  the  advice  of  his  physician 
drinks  for  another  purpose,  —  cojisiiiaites^ialicLexciise 
for  crime  committed  while  under  its  influence.  So, 
doubtless,  would  one  be  held  excusable  who,  without 
negligence,  and  with  the  intent  to  benefit  his  health 
or  alleviate  pain,  and  not  merely  to  gratify  his  appe- 
tite, had,  through  misjudgment  or  mistake,  drunk  more 
than  he  intended,  or  was  necessary,  to  the  extent  01 
intoxication.  In  the  absence  of  intent  either  to  com- 
mit crime  or  to  become  intoxicated,  the  essential  cri- 
terion of  crime  is  wanting.2 

But  one  cannot  plead  over-susceptibility  as  an  excuse 
for  the  excessive  indulgence  of  his  appetite.  And  that 
degree  of  indulgence  is  in  him  excessive  which  pro- 
duces intoxication,  though  the  same  amount  of  indul- 
gence would  not  ordinarily  produce  intoxication  in 
others.  Voluntary  indulgence  carries  with  it  respon- 
sibility for  the  consequences.3 

1  Macconnehy  v.  State,  5  Ohio  St.  n.  8.  77 ;  United  States  v.  Drew, 
6  Mason  (U.  S.  C.  Ct.),  28 ;  People  v.  Williams,  47  Cal.  314  ;  State  v. 
McGonigle,  5  Harr.  (Del.)  510;  Cornwell  v.  State,  1  M.  &  Y.  (Tenn.) 
147. 

2  1  Hale  P.  C.  32 ;  Pearson's  Case,  2  Lew.  C.  C.  144. 
8  Humphreys  v.  State,  45  Ga.  109. 


GENERAL  PRINCIPLES.  21 

f  CLASSIFICATION    OF    CRIMES. 

§  25.  Three  Classes.  —  Crimes  are  classified  as  trea- 
sons^, felonies,  and  misdemeanors,  the  former  being 
regarded  as  the  highest  of  crimes,  and  punished  in  the 
most  barbarous  manner,  as  it  is  a  direct  attack  upon 
the  government,  and  disturbs  the  foundations  of  society 
itself.  It  is  primarily  a  breach  of  the  allegiance  due 
from  the  governed  to  the  government.  It  is  active  dis- 
loyalty against  the  State  ;  and  because  it  is  against  the 
State,  is  sometimes  called  high  treason,  in  contradis- 
tinction to  petit  treason,  which,  under  the  early  English 
law,  was  the  killing  of  a  superior  toward  whom  some 
duty  of  allegiance  is  due  from  an  inferior,  —  as  where  a 
servant  killed  his  master,  or  an  ecclesiastic  his  lord  or 
ordinary.  Now,  however,  this  distinction  is  done 
away  with  both  in  this  country  and  England,  and  such 
offences  belong  to  the  category  of  homicide.1 

§  26.  Felonies  at  common  law  were  such  crimes  as 
upon  conviction  involved  the  forfeiture  of  the  convict's 
estate.2  They  were  also  generally,  but  not  always,  pun- 
ishable with  death.  These  tests  have  long  since  been 
abolished  in  England,  and  what  constitutes  felony  is 
now  to  a  great  extent,  both  there  and  in  this  country, 
determined  by  statutory  regulation.  Whenever  this 
is  not  the  case,  the  courts  look  to  the  history  of  the 
particular  offence  under  consideration,  and  ascertain 
whether  it  was  or  was  not  regarded  by  the  common 
law  as  a  felony.  The  more  usual  statutory  test  in  this 
country  is  that  the  offence  is  punishable  with  death, 
or  imprisonment  in  the  State  prison.8     The   term  is 

1  4  Bl.  Com.  75,  92.  2  4  Bl.  Com.  94. 

8  1  Bishop  Cr.  Law,  §  618. 


22  CRIMINAL  LAW. 

now  significant  only  as  indicating  the  "  degree  or 
class  "  of  the  crime  committed.1  What  was  felony 
at  common  law,  unless  the  statute  has  interposed  and 
provided  otherwise,  is  still  regarded  as  felony  in  all 
the  States  of  the  Union,  with  the  possible  exception 
«Df  Vermont,2  without  regard  to  the  ancient  test  or  to 
the  mode  of  punishment. 

§  27.  Misdemeanors  include  all  other  crimes,  of  what- 
ever degree  or  character,  not  classed  as  treasons  or  felo- 
nies, and  however  otherwise  punishable.3  It  is  for  the 
most  part  descriptive  of  a  less  criminal  class  of  acts. 
But  there  are  undoubtedly  some  misdemeanors  which  in- 
volve more  turpitude  than  some  felonies,  and  may,  tor 
this  reason,  be  visited  with  greater  severity  of  punish- 
ment, though  not  of  the  same  kind.  What  was  not  felony 
by  the  common  law,  or  is  not  declared  to  be  by  statute,  or 
does  not  come  within  the  general  statutory  definitions, 
is  but  a  misdemeanor,  though,  in  point  of  criminality, 
it  may  be  of  a  more  aggravated  character  than  other 
acts  which  the  law  has  declared  to  be  felony.4  When 
a  question  arises  whether  a  given  crime  is  a  felony  or 
a  misdemeanor,  and  the  question  is  at  all  doubtful, 
the  doubt  ought  to  be  resolved  in  favor  of  the  lighter 
offence,6  in  conformity  to  the  rule  of  interpretation 
in  criminal  matters,  that  the  defendant  shall  have  the 
benefit  of  a  doubt. 

§  28.  Attempt.  —  An  attempt  is  an  act  done  in  part 
execution  of  a  design  to  commit  a  crime.6     There  must 

1  1  Russ.  on  Crimes,  40. 

2  State  v.  Scott,  24  Vt.  127. 
8  1  Russ.  on  Crimes,  43. 

*  Cora.  v.  Newell,  7  Mass.  245. 
6  Cora.  v.  Barlow,  4  Mass.  439. 
6  Smith  v.  Commonwealth,  64  Pa.  St.  209. 


GENERAL  PRINCIPLES.  23 

be  an  intent  that  a  crime  shall  be  committed,  and  an  act 
done,  not  in  full  execution,  but  in  pursuance,  of  the 
intent.1  An  attempt  to  commit  a  crime,  whether  com- 
mon law  or  statutory,  is  in  itself  a  crime,  —  usually 
a  misdemeanor,  unless  expressly  made  a  felony  by 
statute.2  But  if  the  act,  when  accomplished,  would 
be  a  violation  of  neither  statute  nor  common  law,  —  as, 
for  instance,  the  procuring  an  abortion  with  the  con- 
sent of  the  mother,  she  not  being  then  quick  with 
child,  —  the  attempt  is  no  crime.3 

§  29.  Attempt.  Preparation.  Intent.  —  An  attempt  to 
commit  a  crime  is  distinguishable  from  preparation  to 
commit  it,  and  also  from  the  intent  to  commit.  The 
purchase  of  matches,  for  instance,  with  the  intent  to  set 
fire  to  a  house  at  some  convenient  opportunity,  is  not 
an  attempt  to  set  the  fire.  It  is  mere  preparation,  and 
though  the  intent  exists,  there  is  no  step  taken  in 
the  perpetration  of  any  crime  to  which  the  intent 
can  attach.  The  law  does  not  punish  the  mere  enter- 
tainment of  a  criminal  intent.  To  bring  the  law  into 
action  it  is  necessary  that  some  act  should  be  done 
in  pursuance  of  the  intent,  immediately  and  directly 
tending  to  the  commission  of  the  crime  ;  an  act  which, 
should  the  crime  be  perpetrated,  would  constitute  part 
and  parcel  of  the  transaction,  but  which  does  not 
reach  to  the  accomplishment  of  the  original  intent,  be- 
cause it  is  prevented,  or  voluntarily  abandoned.4    What 

i  Rex  v.  Wheatley,  2  Burr.  1125;  s.  c  1  B.  &  H.  Lead.  Cr.  Cas.  1 
and  note. 

2  Reg.  v.  Meredith,  8  C.  &  P.  589 ;  Rex  v.  Roderick,  7  C.  &  P.  795  ; 
Smith  v.  Com.,  54  Pa.  St.  209. 

8  State  v.  Cooper,  2  Zab.  (N.  J.)  62  ;  Com.  v.  Parker,  9  Met.  (Mass.) 
263. 

*  Steph.  Dig.  Crim.  Law,  art.  49;  Lewis  v.  State,  35  Ala.  380. 


24  CRIMINAL  LAW. 

does  immediately  and  directly  so  tend  is  to  be  deter- 
mined by  the  circumstances  of  each  particular  case ; 
and,  as  might  be  expected,  courts  which  agree  upon 
the  principle  are  not  entirely  consistent  in  its  appli- 
cation. The  dividing  line  between  acts  preparatory 
to,  and  in  execution  of,  a  crime  is  very  shadowy.  If 
the  act  preparatory  be  unequivocal  and  explicable 
only  upon  the  theory  that  it  was  intended  as  a  step  in 
the  commission  of  a  crime,  as  in  the  procuring  dies  for 
making  counterfeit  coins,  it  seems  to  be  held  to  be 
an  attempt ;  although,  if  explicable  as  a  lawful  act,  it 
might  be  otherwise.1  So  taking  a  false  oath  in  order 
to  procure  a  marriage  license  is  an  attempt  to  marry 
without  a  license.2  So  the  taking  an  impression  of  a 
key  to  a  storehouse  and  preparing  a  false  key  with 
intent  to  enter  and  steal  has  been  held  to  be  an  at- 
tempt to  steal.3  On  the  other  hand,  the  putting  the 
finger  on  the  trigger  of  a  pistol  at  half  cock,  or  other- 
wise not  in  condition  to  be  discharged,  has  been  held 
not  to  constitute  an  attempt  to  shoot.4  And  the 
delivery  of  poison  by  A.  to  B.,  in  order  that  the  latter 
might  deliver  it  to  C.,  to  be  taken  by  the  latter,  is  not 
an  "  attempt  to  poison  "  by  A.5  Nor  is  the  actual  ad- 
ministration of  a  substance  supposed  to  be  poisonous, 
but  not  so  in  fact.6  But  Regina  V.Williams  was  a  case 
under  a  statute ;  and  it  seemed  to  be  agreed  by  all  the 
judges  that  while  they  must  confine  statutory  attempts 

i  Rex  v.  Fuller,  R.  &  R.  C.  C.  308 ;  Reg.  v.  Roberts,  7  Cox  C.  C. 
39. 

2  Reg.  v.  Chapman,  3  Cox  C.  C.  467. 
a  Griffin  v.  State,  25  Ga.  493. 
*  Rex  v.  Harris,  5  C.  &  P.  159. 

5  Reg.  v.  Williams,  1  Den.  C.  C.  39. 

6  State  v.  Clarissa,  11  Ala.  57. 


GENERAL  PRINCIPLES.  26 

strictly  to  the  terms  of  the  statute,  a  less  intimate 
connection  of  the  act  done  with  the  crime  intended  is 
requisite  in  common-law  attempts.1 

In  England,  it  has  been  also  held  that  to  constitute 
an  attempt,  the  act  committed  must  be  of  such  a  nature 
and  under  such  circumstances  that  the  actor  has  the 
power  to  carry  his  intention  into  execution,  and  that 
thrusting  the  hand  into  the  pocket  of  another  with  in- 
tent to  steal  a  pocket-book,  or  some  other  article  of 
property,  is  no  attempt,  if  there  be  at  the  time  noth- 
ing in  the  pocket  to  steal.2  But  this  doctrine  is  ques- 
tioned even  in  England ; 3  and  the  contrary  is  gene- 
rally if  not  universally  held  in  this  country.4  To  in- 
cite, solicit,  advise,  or  agree  with  another  to  commit  a 
crime  is  in  itself  a  crime  in  the  nature  of  an  attempt, 
although  the  contemplated  crime  be  not  committed.5 
But  it  has  recently  been  said  that  the  doctrine  of  these 
cases,  if  sound  law,  cannot  be  extended  to  the  solicita- 
tion to  commit  a  misdemeanor,  a  mere  solicitation  not 
amounting  to  an  attempt.6  It  would  seem,  however, 
that  if  solicitation  is  an  attempt  in  the  case  of  felony, 
it  is  in  that  of  misdemeanor.  It  is  certainly  something 
more  than  intent,  and  the  doctrine  of  the  last  case  can 
better  be  supported  upon  the  failure  of  the  indictment 

1  Reg.  v.  Roberts,  7  Cox  C.  C.  39.  See  the  case9  illustrative  very 
fully  collected  and  stated  in  1  B.  &  H.  Lead.  Cr.  Cas.,  note  to  Rex  v. 
Wheatley,  pp.  6-10 ;  Reg.  v.  Cheeseman,  9  Cox  C.  C.  103  ;  People  v. 
Murray,  14  Cal.  159. 

2  Reg.  v.  Collins,  10  Jur.  n.  8.  686 ;  Reg.  v.  Taylor,  ubi  supra. 

3  See  3  Greenl.  Ev.  §§  2,  163,  21q,  and  notes. 

4  See  Mr.  Greaves's  note  to  1  Russ.  on  Crimes,  p.  1054,  4th  ed. 

6  Reg.  v.  Higgins,  2  East,  5  ;  State  v.  Avery,  7  Conn.  206 ;  3  Greenl. 
Ev.  (13th  ed.)  §  2,  and  note;  Steph.  Dig.  Cr.  Law,  arts.  47,  48; 
1  Bishop,  Cr.  Law,  §  767  ;  State  v.  Sales,  2  Nev.  269. 

6  Swift  v.  Com.,  54  Pa.  St.  209. 


26  CRIMINAL  LAW. 

sufficiently  to  set  forth  the  mode  of  solicitation  than 
upon  the  point  that  mere  solicitation  is  not  an  act. 
An  offer  to  give  a  bribe,  and  an  offer  to  accept  a  bribe, 
have  been  held  to  be  indictable  offences  ; l  and  so 
have  a  challenge  to  fight  a  duel ; 2  and  inviting  an- 
other to  send  a  challenge.3  Although  suicide  is  not 
punishable,  yet  it  is  criminal,4  and  an  unsuccess- 
ful effort  at  suicide  is  punishable  as  an  attempt;5 
though  in  Massachusetts  the  phraseology  of  the  statute 
which  makes  attempts  punishable  by  one-half  the 
penalty  provided  for  the  completed  crime  has  prac- 
tically made  the  offence  of  an  attempt  to  commit  sui- 
cide dispunishable.6  In  some  of  the  States,  suicide  is 
not  regarded  as  a  crime,  but  by  statute  it  is  made  a 
felony  to  persuade  another  to  commit  suicide.7 

CLASSIFICATION    OF    CRIMINALS. 

§  30.  Principals.  Accessories.  —  Criminals  guilty 
of  felony  are  also  classified  by  the  common  law,  ac 
cording  to  the  nearness  or  remoteness  of  their  connec 
tion  with  the  crime  committed,  into  principals  and 
accessories.  In  high  treason  all  are  principals,  on 
account,  it  is  said,  of  the  heinousness  of  the  crime ; 
and  in  misdemeanors  all  are  principals,  because  it  is 
beneath  the  dignity  of  the  law  to  distinguish  the  dif- 
ferent shades  of  guilt  in  petty  crimes.8    And  of  prin- 

i  United  States  v.  Worrall,  2  Ball.  384 ;  Walsh  v.  People,  65  111.  58. 
a  State  v.  Farrier,  1  Hawks  (N.  C),  487 ;  Com.  v.  Whitehead,  2  Law 
Reporter,  148. 

«  Rex  v.  Phillips,  6  East,  464. 

*  Com.  v.  Mink,  123  Mass.  422. 

6  Reg.  v.  Doody,  6  Cox  C.  C.  463. 

6  Com.  w.  Dennis,  105  Mass.  162. 

'  Blackburn  v.  State,  23  Ohio  St.  146. 

8  4  Bl.  Com.  35. 


GENERAL  PRINCIPLES.  27 

cipals,  in  felony,  we  have  those  of  the  first  and  second 
degrees. 

A  principal  in  the  first  degree  is  the  perpetrator  of 
the  act  which  constitutes  the  crime,  whether  he  does  it 
with  his  own  hand,  or  by  the  hand  of  an  innocent 
third  person, —  the  third  person  being  ignorant  of 
the  character  of  the  act  perpetrated ; l  where,  for  in- 
stance, a  parent  puts  poison  into  the  hands  of  his  son 
not  yet  arrived  at  the  age  of  discretion,  and  directs 
hirn  to  administer  it ;  or  one  person,  by  fraud,  force,2 
threats,  or  otherwise,  induces  another  to  take  poison  3 
or  to  steal,  the  fact  that  the  instigator  is  not  actually 
present  is  immaterial,  if  the  connection  between  him 
and  the  act  be  direct,  or  the  crime  be  committed  under 
such  circumstances  that  no  one  else  but  the  instigator 
can  be  indicted  as  principal.  Otherwise,  a  crime  might 
be  committed,  and  no  one  would  be  guilty  as  principal.4 

When  several  persons  participate  in  an  act,  each 
doing  a  part  and  neither  the  whole,  as  where  several 
take  part  in  a  single  burglary,  all  are  principals  in  the 
first  degree.6 

Principals  in  the  second  degree  are  those  who,  with- 
out actually  participating  in  the  act  itself,  are  present 
aiding  and  encouraging  the  party  who  commits  the  act ; 
as  where  one  undertakes  to  watch  to  prevent  the  prin- 
cipal from  being  surprised,  or  to  aid  him  to  escape,  or 
in  some  other  way  to  be  of  immediate  and  direct  assist- 
ance to  him  in  the  promotion  of  his  enterprise.6     This 

i  State  v.  Shurtleff ,  18  Me.  368  ;  Bishop  v.  State,  30  Ala.  34. 

2  Collom  v.  State,  3  Heisk.  (Tenn.)  14;  1  Hale  P.  C  614. 

8  Blackburn  v.  State,  23  Ohio  St.  146. 

*  1  Hale  P.  C.  514  ;  Vaux's  Case,  4  Coke,  44. 

6  Rex  v.  Kirkwooii,  1  Moody,  304. 

e  4  Bl.  Com.  36;  Breese  v.  State,  12  Ohio  St.  146. 


'28  CRIMINAL  LAW. 

distinction,  however,  of  the  old  law  is  not  now  regarded 
with  any  favor,  and,  in  fact,  it  has  in  many,  if  not 
most,  of  the  States  become  practically  obsolete.1  Some 
statutes,  however,  recognize  it,  and  in  some  the  pun- 
ishment is  based  upon  the  distinction. 

§  31.  Accessories  are  divided  into  two  classes, — those 
before  and  those  after  the  fact.  An  accessory  before 
the  fact  is  one  who,  without  being  present  aiding  or 
abetting,  procures,  advises,  or  commands  another  to 
commit  the  crime.2  An  accessory  after  the  fact  is  one 
who,  knowing  the  fact  that  a  felony  has  been  commit- 
ted, receives,  relieves,  comforts,  or  assists  the  felon.3 
These  distinctions  grew  out  of  the  rule  of  the  common 
law,  that  every  offence  should  be  particularly  described, 
so  that  the  party  charged  might  know  with  reasonable 
certainty  to  what  he  was  to  answer.  The  tendency  of 
the  modern  law  is  to  disregard  the  distinction,  so  far  as 
it  can  be  done  consistently  with  the  observance  of  the 
rules  of  pleading.4 

The  offences  of  advising  another  to  commit  a  felony, 
the  adviser  not  being  present  at  its  commission,  and 
of  receiving  and  concealing  stolen  goods,  are,  so  far  as 
the  circumstantial  description  is  concerned,  different 
from  the  felonies  themselves,  and  in  several  of  the  States 
the  latter  has  been  by  statute  made  a  distinct  and  sub- 
stantive offence,  punishable  whether  the  principal 
felon  has  or  has  not  been  tried  and  convicted,  though 

i  1  Bishop  Cr.  Law,  §  648. 

2  4  Bl.  Cora.  63. 

3  4  Bl.  Com.  37. 

*  People  v.  Bearss,  20  Cal.  439.  Ch.  94,  §  2,  24  &  25  Vict.,  makes 
accessories  before  the  fact  and  principals  in  the  second  degree  indict- 
able as  if  they  alone  had  committed  the  act,  although  any  other 
party  to  the  crime  may  have  been  acquitted. 


GENERAL  PRINCIPLES.  29 

under  the  ancient  common  law  the  accessory  could  be 
put  upon  his  separate  trial  only  in  case  the  principal 
had  been  tried  and  convicted.  This  rule  was  adopted 
to  avoid  the  absurdity  of  convicting  an  accessory  and 
afterwards  acquitting  the  principal.  And  where  now 
the  accessory  may  be  tried  before  or  after  the  principal 
is  convicted,  if  afterwards,  before  sentence,  the  princi- 
pal be  tried  and  acquitted,  the  accessory,  already  con- 
victed, on  proof  of  the  acquittal  of  the  principal,  will 
be  entitled  to  his  discharge,  the  statute  modifying  the 
common-law  rule  only  so  far  as  to  allow  of  the  trial 
of  an  accessory  before  or  after  the  conviction  of  the 
principal,  but  not  after  his  acquittal.1 

An  accessory  before  the  fact  in  one  State  to  a  felony 
committed  in  another  State  is  amenable  to  the  courts 
of  the  State  where  he  became  accessory,  although  the 
principal  can  only  be  tried  where  the  felony  was  com 
mitted.2 

It  matters  not  how  remote  the  accessory  be  from 
the  principal.  If  A.  through  one  or  more  interme- 
diate agents  procures  a  person  to  commit  a  felony,  he 
is  accessory  to  the  latter  as  principal ;  and  one  may  be 
an  accessory  after  the  fact  to  an  accessory  before  the 
fact,  by  aiding  and  concealing  him.3 

It  is  also  a  principle  of  the  common  law  that  the 
offence  of  the  accessory  cannot  be  greater  than  that  of 
the  principal,4  nor   can  the  person  who  advises   the 

1  McCarty  v.  State,  44  Ind.  214 ;  8.  c.  2  Green  Cr.  Law  Rep.  715. 
A  substantially  similar  statute  exists  in  most  of  the  States  as  well  as 
in  England.    See  post,  p.  31,  n,  3. 

2  State  v.  Chapin,  17  Ark.  561.  See  also  Adams  v.  People,  1  Comst. 
(N.  Y.)  173;  State  v.  Ricker,  29  Me.  84;  Com.  v.  Smith,  11  Allen 
(Mass.),  241 ;  Holmes  v.  Com.,  25  Pa.  St.  221 ;  2  Burr's  Trial,  440. 

8  2  Hawk.  P.  C.  c.  29,  §  1.  *  2  Hawk.  P.  C.  c.  29,  §  1. 


30  CRIMINAL  LAW. 

commission  of  a  particular  crime  be  held  as  accessory 
to  a  principal  who  commits  a  substantially  different 
crime,  unless  the  latter  is  the  natural  result  of  the 
effort  to  commit  the  one  advised.1  Thus,  if  a  person 
advises  another  to  beat  a  third,  he  is  accessory  to  the 
beating  and  its  natural  consequences,  but  he  is  not 
accessory  to  the  different  and  additional  crime  of  rape 
committed  by  the  principal.2  It  has  recently  been  held 
in  England  by  Lush,  J.,  at  Nisi  Prius,  that  if  several 
persons  agree  together  to  commit  a  criminal  act  in  a 
particular  way,  each  is  responsible  for  the  acts  of  the 
others  done  in  the  way  agreed  on,  but  not  for  acts 
done  in  any  other  way.  If,  for  instance,  A.  and  B. 
agree  to  assault  C.  with  their  fists,  each  is  responsible 
for  the  consequences  of  an  assault  by  the  other  with 
the  fists.  But  A.  is  not  responsible,  if  B.,  without 
his  knowledge,  uses  a  knife,  for  the  consequences  of 
any  injury  by  the  knife.3  But  it  may  be  doubted  if 
this  is  sound  law.4 

§  32.  No  Accessories  in  Misdemeanors. — In  misde- 
meanors all  are  principals,  and  so  the  common  law 
seems  to  have  held  of  treason.  To  felonies,  therefore, 
the  distinction  is  confined.5 

§  33.  Accessories  in  Manslaughter.  —  At  common  law 
it  was  once  held  that  one  could  not  be  accessory  before 
the  fact  to  manslaughter,  because  that  offence  was  in 

i  2  Hawk.  P.  C.  c.  29,  §  18. 

2  2  Hawk.  P.  C.  c.  29,  §  18 ;  Watts  v.  State,  5  W.  Va.  572. 

8  Reg.  v.  Caton,  12  Cox  C.  C.  624. 

*  See  4  Bl.  Com.  37 ;  Foster,  Crim.  Law,  369. 

5  Reg.  v.  Greenwood,  2  Den.  C.  C.  453;  Com.  v.  Ray,  3  Gray 
(Mass.),  441;  Ward  v.  People,  6  Hill  (N.  Y.),  144;  Williams  v.  State, 
12  S.  &  M.  (Miss.)  58;  State  v.  Goode,  1  Hawks  (N.  C),  463;  Com 
v.  McAtee,  8  Dana  (Ky.),  28. 


GENERAL  PRINCIPLES.  31 

its  nature  sudden  and  unpremeditated.1  But  it  has 
been  said  by  high  authority  that  Lord  Hale  in  thus 
stating  the  law  alludes  only  to  cases  of  killing  per  in- 
fortunium, or  in  self-defence,  and  that  in  other  cases  of 
manslaughter  there  seems  to  be  no  reason  why  there 
may  not  be  accessories.2  However  this  may  be,  the 
question  becomes  unimportant  in  those  States  which  do 
not  favor  the  distinction  between  principals  in  the  first 
and  second  degree,  and  principal  and  accessory  before 
the  fact ;  and  there  a  man  indicted  as  accessory  before 
the  fact  to  murder  may  be  convicted,  though  his  prin- 
cipal may  have  been  convicted  of  manslaughter  only, 
or  even  if  he  have  been  acquitted.3 

Where  one  employs  a  second  to  procure  a  third  per- 
son to  commit  a  felony,  the  first  two  are  accessories  to 
the  third  principal.  And  this  is  true,  although  the 
first  knows  not  who  the  third  may  be.4  So  one  may 
be  accessory  after  the  fact  by  procuring  another 
to  assist  the  principal.5  And  where  one  would 
become  an  accessory  if  the  offence  instigated  should 
be  committed,  yet  if,  before  its  commission,  he  coun- 
termands his  advice  and  withdraws  from  the  enter- 
prise, he  is  not  accessory  to  any  act  done  after 
notice  actually  given  of  the  withdrawal.6  He  is 
only  accessory  to  the  act  which  has  been  committed 
when  the  aid  is  rendered.     Thus,  where  one  renders 

i  1  Hale  P.  C.  437. 

2  Erie,  J.,  Reg.  v.  Gayler,  7  Cox  C.  C.  253  ;  Reg.  v.  Taylor,  IS 
Cox,  Cr.  Cas.  68.  See  also  State  v.  Coleman,  5  Port.  (Ala.)  32  ;  Rex 
v.  Greenacre,  8  C.  &  P.  35. 

8  People  o.  Newberry,  20  Cal.  439.     See  ante,  p.  29,  n.  1. 

*  Rex  v.  Cooper,  5  C.  &  P.  675. 

5  Rex  v.  Jarvis.  2  M.  ,<:  R.  40. 

6  1  Hale  P.  C.  <U8. 


S2  CRIMINAL  LAW. 

aid  after  a  mortal  stroke,  but  before  the  consequent 
death,  he  is  not  accessory  to  the  death.1 

§  34.  Husband  and  Wife.  —  By  the  common  law  the 
duty  of  a  wife  to  succor  and  harbor  her  husband  pre- 
vented her  from  incurring  the  guilt  of  an  accessory 
after  the  fact  thereby.  But  no  other  relationship  was 
a  protection.2  By  statute,  however,  in  some  of  the 
States  other  relationships  have  been  made  a  protection. 
But  though  the  wife  cannot  be  an  accessory  after  the 
fact  to  her  husband  as  principal,  and  it  is  said  that  for 
the  same  reason  —  relationship  and  duty  to  succor  and 
protect  — the  husband  cannot  be  accessory  after  the  fact 
to  the  wife3  (against  the  opinion,  however,  of  the  older 
authorities 4),  yet  either  may  be  accessory  before  the  fact 
to  the  other  as  principal.6 

§  35.  Assistance  must  be  personal.  —  By  a  very  nice 
distinction  it  is  held  that  he  who  buys  or  receives 
stolen  goods,  though  he  may  be  guilty  of  a  substantive 
misdemeanor,  is  not  an  accessory,  because  he  doCs  not 
receive  or  assist  the  thief  personally,  it  being  necessary 
to  constitute  an  accessory  after  the  fact  that  the  act 
should  amount  to  personal  assistance  to  the  princi- 
pal ; 6  while  he  who  assists  him  in  further  carrying 
them  away  after  they  have  been  stolen,  is  an  acces- 
sory.7 On  the  other  hand,  a  person  who  is  in  fact 
absent  and  away  from   the  place  where   the   crime, 

i  1  Hale  P.  C.  602.  2  2  Hawk.  P.  C  c.  29,  §  34. 

s  1  Deac.  Cr.  Law,  15. 

*  4  Bl.  Com.  38 ;  1  Hale  P.  C.  621  ;  2  Hawk.  P.  C.  c.  29,  §  34. 

6  Reg.  v.  Manning,  2  C.  &  K.  903 ;  Rex  v.  Morris,  R.  &  R.  270. 

fi  4  Bl.  Com.  38 ;  Loyd  v.  State,  42  Ga.  221 ;  People  v.  Cook,  5 
Park.  (N.  Y.)  C.  R.  351 ;  Reg.  v.  Chappie,  9  C.  &  P.  355. 

i  Rex  v.  King,  R.  &  R.  339;  People  v.  Norton,  8  Cow.  (N.  Y.) 
137 


GENERAL  PRINCIPLES.  33 

by  previous  arrangement,  is  committed,  as  where  he 
entices  and  keeps  away  the  owner  of  a  store  while  his 
confederate  robs  it,  —  this  absence  being  in  further- 
ance and  part  of  the  enterprise,  —  is  not  an  accessory 
but  a  principal.1  So,  if  he  watches  for  the  purpose  of 
giving  information,  or  other  aid  if  necessary.2  Mere 
presence,  however,  without  approval  known  to  the 
principal,  or  other  encouragement,  evidenced  by  some 
act,  does  not  make  one  an  accessory.3  Nor  is  one  ab- 
sent, though  in  some  sense  aiding,  as  the  stakeholder 
to  a  prize-fight,  to  be  regarded  as  an  accessory.4 

§  36.  An  Accomplice  is  one  who  shares  in  the  com- 
mission of  the  crime  in  such  manner  that  he  may  be 
indicted  with  the  principal  as  a  participator  in  the 
offence.  Therefore,  under  a  statute  for  unlawfully 
administering  a  drug  to  a  pregnant  woman  with  intent 
to  procure  a  miscarriage,  the  woman  is  not  an  accom- 
plice.5 Nor  is  a  person  who  enters  into  a  pretended 
confederacy  with  another  to  commit  a  crime,  and  aids 
him  therein  for  the  purpose  of  detecting  him,  having 
himself  no  criminal  intent,  either  an  accessory  or 
an  accomplice.6  Nor  is  one  who  entraps  another  into 
the  commission  of  a  crime  for  a  like  purpose.7  So 
under  an  indictment  for  betting  at  ten-pins,  one  who 

i  Breese  v.  State,  12  Ohio  St.  146. 
2  Doan  v.  State,  26  Ind.  495. 

8  United  States  v.  Jones,  3  Wash.  C.  Ct.  223 ;   State  v.  Hildreth, 
9  Ired.  (X.  C.)  440 ;  Clem  v.  State,  33  Ind.  418. 
*  Reg.  v.  Taylor,  13  Cox  C.  C.  68. 

6  State  v.  Hyer,  39  N.  J.  598  ;  Com.  v.  Boynton,  116  Mass.  345. 

8  Rex  v.  Despard,  28  How.  St.  Trials,  346  ;  State  v.  McKean,  36 
Iowa,  343. 

7  Com.  v.  Downing,  4  Gray  (Mass.),  29;  State  v.  Anone,  2  N.  & 
McC.  (N.  C.)  27  ;  People  v.  Barric,  49  Cal.  342  ;  Alexander  v.  State, 
12  Tex.  540. 

3 


34  CRIMINAL  LAW. 

merely  takes  part  in  the  game,  but  does  not  bet,  is  not 
an  accomplice.1 

The  question  whether  one  is  an  accomplice  usually 
arises  in  the  course  of  a  trial,  as  a  question  of  evi- 
dence, and  is  to  be  determined  by  the  jury,  under 
instructions  from  the  court,  as  to  what  constitutes  an 
accomplice.2  Being  particeps  criminis,  his  evidence 
may  be  regarded  as  that  of  a  criminal.  And  it  is  the 
usual  practice  of  the  courts  to  advise  not  to  convict 
upon  the  uncorroborated  testimony  of  an  accomplice. 
This,  however,  is  not  a  rule  of  law.  It  is  entirely 
within  the  discretion  of  the  court  whether  it  will  cau- 
tion the  jury  in  this  way  ;  and  a  refusal  so  to  do  is  no 
matter  of  exception.3  The  practice  in  England  is 
more  uniform  in  felonies  than  in  misdemeanors,  in 
which  latter  case  it  is  sometimes  refused.4  In  Georgia 
the  rule  is  made  applicable  only  in  felonies.6  But  a 
conviction  on  the  uncorroborated  evidence  of  an  ac- 
complice is  good  at  common  law.  The  principle 
which  allows  the  evidence  to  go  to  the  jury  at  all 
necessarily  involves  the  right  to  believe  and  act  upon 
it.6  But  by  statute  in  Iowa,  and  perhaps  other  States, 
there  must  be  corroboration.7 

1  Bass  v.  State,  37  Ala.  469. 

2  Cora.  v.  Glover,  111  Mass.  395;  State  v.  Schlagel,  19  Iowa,  169 
8  State  v.  Litchfield,  58  Me.  267 ;  Smith  v.  State,  37  Ala.  472. 

*  McClurg  v.  Wright,  10  Ir.  Law,  n.  s.  514  ;  1  Greenl.  Ev.  §  382,  n. 

5  Parsons  v.  State,  43  Ga.  197. 

6  Com.  v.  Bosworth,  22  Pick.  (Mass.)  397;  People  v.  Costello, 
1  Denio  (N.  Y.),  80  ;  United  States  v.  Kepler,  1  Bald.  C.  Ct.  22  ;  State 
v.  Walcott,  21  Conn.  272  ;  Dawley  v.  State,  4  Ind.  128 ;  State  v.  Prud- 
homme,  25  La.  Ann.  522  ;  State  v.  Hyer,  ubi  supra ;  Lindsay  v.  People, 
63  N.  Y.  143  ;  Hamilton  v.  People,  29  Mich.  173.  Contra,  People  v. 
Ames,  39  Cal.  403  ;  Lopez  v.  State,  34  Tex.  133. 

7  State  v.  Moran,  34  Iowa,  453 ;  Smith  v.  State,  37  Ala.  472. 


GENERAL  PRINCIPLES.  85 

§  ol.  Evidence  in  Criminal  Cases.  —  The  rules  of 
evidence  applicable  in  criminal  cases  are  substantially 
the  same  as  in  civil  cases,  with  the  single  exception 
that  in  a  criminal  case  every  essential  allegation  made 
by  the  prosecution  must  be  proved  beyond  a  reasonable 
doubt,  in  order  to  entitle  the  government  to  a  ver- 
dict. If  upon  all  the  evidence  introduced  by  the  gov- 
ernment and  by  the  accused  there  results  a  reasonable 
doubt  upon  any  essential  allegation  in  the  indictment 
or  complaint,  the  erimwial  is  entitled  to  an  acquittal. 
Upon  all  these  issues,  therefore,  he  has  only  to  raise 
a  reasonable  doubt.^  "When,  however,  the  accused  sets 
up  in  defence  a  distinct  and  independent  fact  not  en- 
tering into  these  issues,  he  must  prove  it  by  a  prepon- 
derance of  evidence.  Thus,  if  the  defence  be  insanity, 
since  it  is  a  part  of  the  case  of  the  prosecution  that 
the  accused  was  sane,  it  is  necessary  for  the  accused  to 
produce,  or  that  there  should  appear  in  the  case  upon 
all  the  evidence  introduced,  only  so  much  evidence  of 
insanity  as  to  induce  a  reasonable  doubt  on  the  issue, 
in  order  to  secure  his  acquittal.  If,  on  the  other 
hand,  the  defence  be  a  former  acquittal,  since  this 
is  a  new,  distinct,  and  independent  fact,  in  no  way 
embraced  in  the  allegations  of  the  prosecution,  the 
accused  assumes  the  burden  of  proof,  and  must  es- 
tablish the  fact  by  a  preponderance  of  evidence.  In 
civil  cases,  each  party  takes  the  burden  of  proof  of 
the  facts  alleged  essential  to  make  out  his  case,  and 
may  establish  them  by  a  preponderance  of  proof.1 
Criminal  cases  to  which  the  rule  of  proof  beyond  rea- 

i  See  1  Greenl.  Ev.  (18th  ed.)  §§  81  a,  81  6 ;  2  Greenl.  Ev.  §  29,  n.  ; 
Steph.  Dig.  of  the  Law  of  Ev.  (May's  ed.)  p.  40,  n. ;  10  Ara.  L.  Rev. 

p.  642  tt  seq.;  Kane  v.  Hibernian  Lis.  Co.,  10  Vrooni  (N.  J.),  097. 


36  CRIMINAL  L,AW. 

sonable  doubt  applies  are  such  only  as  are  criminal  in 
form,  and  cognizable  by  a  court  administering  the 
criminal  law.  If  the  question  whether  a  crime  has  been 
committed  arises  in  a  civil  case,  tried  by  a  court  admin- 
istering the  civil,  as  contradistinguished  from  the 
criminal,  law,  the  rule  of  evidence  applicable  in  the 
civil  courts  prevails.  Thus,  in  an  indictment  for  an  as- 
sault, the  prosecution  must  prove  the  assault  beyond  a 
reasonable  doubt;  while  in  a  civil  action  for  damages 
for  the  same  assault,  the  plaintiff  is  only  required  to 
prove  it  by  a  preponderance  of  evidence. 

The  general  test  of  a  criminal  case  is  that  it  is  by 
indictment,  and  of  a  civil  case,  that  it  is  by  action. 
But  the  decisions  upon  this  point  are  not  uniform.1 

§  38.  Evidence.  Pleading.  Trial.  —  By  the  common 
law  there  was  one  state  of  circumstances  under  which 
a  person  might  be  found  guilty  of  a  misdemeanor 
without  a  trial  to  the  jury  upon  the  merits.  If  a  plea 
of  former  acquittal  or  conviction  to  an  indictment  for 
a  misdemeanor  be  found,  on  replication  or  demurrer, 
against  the  prisoner,  he  might  be  sentenced  without 
a  trial  for  the  offence  itself ; 2  but  upon  the  decision 
against  the  prisoner  in  such  a  case,  on  an  indictment 
for  felony,  he  might  answer  over,  and  have  his  trial 
upon  the  merits.  This  is  not,  however,  the  rule  in  this 
country,  where  the  prisoner  is  usually  allowed  to  have 
his  trial  in  both  cases,  as  a  matter  of  right,  if  in  his  plea 
he  reserves  the  right  to  plead  over.3     In  Tennessee,  it 

■   1  The  cases  are  very  fully  collected  In  1  Bishop  Cr.  Law,  §§  32, 33. 

2  Reg.  v.  Bird,  2  Eng.  L.  &  Eq.  530 ;  s.  c.  5  Cox  C.  C.  20. 

8  Com.  v.  Goddard,  13  Mass.  455 ;  Corn.  v.  Barge,  3  Pa.  268 ;  Rosa 
v.  State,  9  Mo.  696 ;  State  v.  Dresser,  64  Me.  569 ;  United  States  v. 
Conant,  C.  Ct.  Mass.,  Sept.  1879. 


GENERAL  PRINCIPLES.  37 

has  been  said  to  be  a  matter  of  discretion  with  the 
court.1 

§  39.  Doubt  as  to  Interpretation.  —  If  it  be  fairly 
doubtful  whether  the  crime  charged  comes  within  the 
purview  of  a  statute,  it  has  been  frequently  said,  the 
prisoner  is  entitled  to  the  benefit  of  the  doubt.2  But 
it  has  also  been  held  that  it  is  not  the  duty  of  the  court 
to  instruct  the  jury  that,  if  they  have  a  reasonable 
doubt  as  to  the  law  or  the  applicability  of  the  evidence, 
they  must  give  the  prisoner  the  benefit  of  the  doubt.3 
And  perhaps  it  is  only  a  court  of  last  resort,  if  any, 
which  should  give  the  prisoner  that  benefit.4 

It  is,  however,  a  universal  rule  of  construction  that 
all  penal  and  criminal  laws  shall  be  construed  strictly 
in  favor  of  the  life,  liberty,  and  property  of  the  citi- 
zen.5 

§  30  a.  Ex  post  facto  Law.  —  Laws,  in  general,  can 
have  no  retroactive  efficacy ;  and,  especially  in  the 
United  States,  all  ex  post  facto  laws,  or  laws  which 
make  criminally  punishable  an  act  which  was  not  so 
punishable  at  the  time  it  was  committed,  or  punish 
an  offence  by  a  different  kind  of  punishment,  or  in  a 
different  manner, — not  diminishing  the  punishment, — 
from  that  by  which  it  was  punishable  before  the  stat- 
utes were  passed,  and  prohibited  by  the  Constitution 
of  the  United  States.6 

On  the  other  hand,  when  a  statute  creating  an  offence 

1  Bennett  v.  State,  2  Yerg.  472. 

2  United  States  v.  Wliittier,  Dillon,  J.,  6  Eeptr.  260,  and  cases 
there  cited. 

8  O'Neil  v.  State,  48  Ga.  66.  *  Cook  v.  State,  11  Ga.  53. 

6  Com.  v.  Barlow,  4  Mass.  39. 

6  Hartung  v.  People,  26  N.  Y.  167 ;  28  N.  Y.  400 ;  Calder  v.  Bull, 
3  Dall.  (U.  S.)  386;  State  v.  Kent,  65  N.  C.  311. 


38  CRIMINAL  LAW. 

is  repealed,  or  expires  before  judgment  in  a  criminal 
case,  judgment  cannot  be  entered  against  the  prisoner, 
unless  by  a  saving  clause  in  the  statute  excepting  pend- 
ing cases ;  and  in  such  cases,  if  the  statute  expires 
after  judgment  and  before  execution,  the  judgment  will 
be  reversed  or  execution  stayed.1  But  laws  changing 
the  rules  of  evidence  or  of  procedure2  do  not  come 
under  the  category  of  ex  post  facto  laws. 

§  40.  No  One  Twice  to  be  put  in  Jeopardy.  —  It  is 
another  well-settled  and  most  salutary  principle  of 
criminal  law  that  no  person  shall  be  put  upon  trial 
twice  for  the  same  offence.  This  old  doctrine  of  the 
common  law  has  found  its  way  into  the  Constitution 
of  the  United  States,  and  into  that  of  most  or  all  of 
the  States,  in  different  forms  of  expression,  substan- 
tially that  no  person  shall  be  put  twice  in  jeopardy 
of  life  or  limb  for  the  same  offence.  The  meaning  of 
this  is,  that  when  a  person  has  been  in  due  form  of 
law  put  upon  trial  upon  a  good  and  sufficient  indict- 
ment, and  convicted  or  acquitted,  that  conviction  or 
acquittal  may  be  pleaded  in  bar  to  a  subsequent  prose- 
cution, within  the  same  jurisdiction,  for  the  same 
offence.3  And  even  if  the  indictment  be  insufficient 
and  the  proceedings  be  irregular,  so  that  a  judgment 
thereupon  might  be  set  aside  upon  proper  process,  yet  if 
the  sentence  thereunder  has  been  acquiesced  in  by,  and 
executed  upon,  the  convict,  such  illegal  and  voidable 
judgment  constitutes  a  good  plea  in  bar.4     So  if  the 

i  Hartung  v.  People,  22  N.  T.  95  ;  United  States  v.  Finlay,  1  Abb. 
364 ;  State  v.  Daley,  29  Conn.  272 ;  Taylor  v.  State,  7  Blackf.  (Ind.)  93 ; 
Com.  v.  Pa.  Canal  Co.,  66  Pa.  St.  41. 

2  Stokes  v.  People,  53  N.  Y.  162;  People  v.  Mortimer,  46  Cal.  114, 

»  United  States  v.  Gibert,  2  Sumn.  (U.  S.  C.  Ct.)  42. 

*  Com.  v.  Loud,  3  Met.  (Mass.)  328. 


GENERAL  PRINCirLES.  39 

prisoner  be  sentenced  to  an  illegal  punishment,  —  as, 
for  instance,  to  fine  and  imprisonment,  where  the  law- 
authorizes  only  one,  after  part  execution  of  either,  — 
he  cannot  afterwards,  upon  a  revision  of  the  sen- 
tence, even  during  the  same  term  of  court,  be  pun- 
ished by  the  imposition  of  the  lawful  punishment.1 
But  the  rule  does  not  protect  from  prosecution  by 
another  sovereignty,  if  the  same  act  is  a  violation  of 
its  law,  as  the  lawrs,  and  especially  the  criminal  laws, 
of  a  country  have  no  extra-territorial  efficacy.  If, 
therefore,  one  sovereignty  has  punished  an  act  which 
was  also  a  violation  of  the  law  of  another  sovereignty, 
the  latter  has  the  right,  in  its  discretion,  also  to  pun- 
ish the  act.2  Doubtless,  however,  in  such  case,  the 
fact  of  prior  punishment  would  have  great  weight  in 
determining  whether  the  guilty  party  should  be  again 
punished  at  all,  or  if  punished,  to  wdiat  degree.3  It  has 
been  said  by  high  authority*  that  a  conviction  of  piracy, 
which  is  an  offence  against  all  sovereignties,  under 
one  sovereignty,  would  doubtless  be  recognized  in  all 
other  civilized  countries  as  a  good  plea  in  bar  to  a 
second  prosecution.  When  there  are  two  sovereign- 
ties having  jurisdiction  within  the  same  geographical 
limits,  there  can  be  no  doubt  that  one  act  may  consti- 
tute a  crime  against  both,  and  be  punishable  by  both. 
Thus,  an  assault  upon  an  officer  of  the  United  States, 
while  acting  in  the  discharge  of  his  duty  within  the 
limits  of  a  State,  may  be  punished  as  an  assault  by  the 

i  Ex  parte  Lange,  18  Wall.  (U.  S.)  183,  Clifford  and  Strong,  JJ., 
dissent  in  g. 

-  State  v.  Brown,  1  Hayw.  (N.  C.)  116;  United  States  v.  Amy, 
1  1  Ml.  152;  Cum.  v.  Green,  17  Mass.  514;  Phillips  v.  People,  55  111. 
429;  pott,  §  41. 

8  United  States  v.  Amy,  14  Md.  149. 

*  United  States  t\  Pirates,  5  Wheat.  (U.  S.)  184. 


40  CRIMINAL  LAW. 

State,  and,  by  the  United  States,  as  an  assault  upon  its 
officer  in  the  discharge  of  his  duty,  —  a  higher  offence.1 
So  the  same  act  may  be  a  violation  of  a  city  charter 
and  the  penal  law  of  the  State.2  Where  the  same  act 
constitutes  two  offences,  there  may  be  a  punishment 
for  each  offence.3  Though  from  the  words  "  jeopardy 
of  life  or  limb  "  it  has  been  contended  that  the  rule  is 
applicabb,  where  such  words  or  their  equivalent  are 
used,  only  to  such  crimes  as  are  punished  by  injury  to 
life  or  limb,  yet  it  is  very  generally  if  not  universally 
held  by  the  courts  that  it  is  applicable  to  all  grades  of 
offences.4  It  is  not  only  for  the  interest  of  society 
that  there  should  be  an  end  of  controversy,  but  it  is  a 
special  hardship  that  an  individual  should  be  indefi- 
nitely harassed  by  repeated  prosecutions  for  the  same 
offence.  So  firmly  is  this  doctrine  established,  that 
the  government  will  not  be  allowed  to  institute  a  sec- 
ond prosecution,  or  put  the  prisoner  to  a  new  trial, 
even  though  his  acquittal  is  consequent  upon  the 
judge's  mistake  of  law,  or  the  jury's  disregard  of 
fact.  If,  however,  he  be  convicted  by  a  misdirection 
of  the  judge  in  point  of  law,  or  misconduct  on  the 
part  of  the  jury,  he  may  by  proper  process  have  the 
verdict  set  aside;  in  which  case,  the  trial  not  having 
been  completed,  and  the  verdict  having  been  set  aside 
at  his  request,  the  accused  may  be  again  set  to  tlie  bar. 
To  give,  therefore,  the  accused  a  good  plea  that  he 
has  once  been  put  in  jeopardy,  it  must  appear  that  he 
was  put  upon  trial  in  a  court  of  competent  jurisdic- 

1  Moore  v.  Illinois,  14  How.  (U.  S.)  137 ;  and  see  post,  §  41. 
-  Ambrose  v.  State,  6  Ind.  351. 

3  State  v.  Inness,  53  Me.  536;  Cora.  v.  McShane,  110  Mass.  502. 
See  also  post,  §  41. 

*  1  Bishop   Cr.  Law,  §  990. 


GENERAL  PRINCIPLES.  41 

tion,  upon  an  indictment  upon  which  he  might  have 
been  lawfully  convicted  of  the  crime  charged,  and  be- 
fore a  jury  duly  impanelled,  and  that,  without  fault  on 
his  part,  he  was  convicted  or  acquitted,  or  that,  if  there 
was  no  verdict,  the  jury  were  unlawfully  discharged. 
And  the  jury  may  be  discharged  before  verdict  is 
rendered,  when  in  the  judgment  of  the  court  there  is 
a  clear  necessity  therefor,  or  the  ends  of  justice  will 
otherwise  be  defeated  ;  as  where  the  term  of  court  ex- 
pires before  a  verdict  is  reached ;  or  the  jury,  after 
sufficient  deliberation,  of  which  the  court  is  the  judge, 
cannot  agree;  or  the  trial  is  interrupted  by  the  sick- 
ness or  death  of  judge  or  juror ;  or  the  jury  is  dis- 
charged by  the  consent  of  the  prisoner.1  So  much  of 
the  learned  opinion  of  Judge  Story,  in  United  States 
v.  Gibert,2  as  holds  that  no  new  trial  can  be  had  in 
cases  of  felony,  is  now  generally,  if  not  universally, 
regarded  as  unsound  law.3  If  the  accused  procure  a 
conviction  by  fraud,  it  will  not  avail  him  as  a  plea  in 
bar,  this  being,  within  the  above  rule,  by  his  fault.4  So 
if,  after  a  trial,  the  prisoner  fails  to  appear  when  the 
jury  return  with  their  verdict,  and  no  verdict  is  ren- 
dered, no  trial  is  completed,  and  the  accused  may  be 
put  on  trial  again. 

As  to  the  effect  of  a  former  acquittal  of  an  offence 
which  includes,  or  is  part  of,  another  offence,  there  is 

1  See  Ex  parte  Lange,  18  Wall.  (U.  S.)  183;  Reg.  v.  Bird,  5  Cox 
C.  C.  20;  Com.  v.  Roby,  12  Pick.  (Mass.)  496;  Guenther  v.  People, 
24  N.  Y.  100 ;  Hines  v.  State,  24  Ohio,  n.  8.  134 ;  State  v.  Jetferson, 
66  N.  C.  309  ;  State  v.  Wilson,  60  Ind.  487 ;  State  v.  Vauglmn,  29  Iowa, 
280  ;  McNeil  v.  State,  47  Ala.  498. 

2  2  Sumner  C.  Ct.  42. 

8  Ex  parte  Lange,  ubi  supra.    Dissenting  opinion  of  Clifford,  J. 
4  Com.  v.  Darwin,  111  Mass.  404  ;  State  v.  Coir.  1^  Mo.  7<>  :  State 
v.  Lowry,  1  Swan  (Tenn.),  34 ;  State  v.  Battle,  7  Ala   269. 


42  CRIMINAL  LAW. 

some  confusion,  not  to  say  difference,  amongst  the 
authorities.  But  the  following  is  believed  to  be  a  fair 
statement  of  the  result :  Where  a  person  has  been  tried 
for  an  offence  which  necessarily  includes  one  or  more 
others  of  which  he  might  have  been  convicted  under  the 
indictment,  he  cannot  be  afterwards  tried  for  either  of 
the  offences  of  which  he  might  have  been  convicted  un- 
der the  indictment  on  which  he  was  tried.  Thus,  if  the 
trial  is  upon  an  indictment  for  assault  and  battery,  it 
cannot  be  afterwards  had  upon  an  indictment  for  an 
assault.  But  on  an  indictment  for  an  offence  which  is 
part  and  parcel  of  a  greater,  a  previous  trial  for  the 
lesser  is  not  a  bar  to  a  subsequent  trial  for  the  greater, 
unless  some  decisive  fact  is  necessarily  passed  upon 
under  the  first  indictment,  in  such  a  way  as  to  amount 
to  an  effectual  bar  to  the  second.  A  conviction  or 
acquittal,  in  order  to  be  a  bar  to  a  subsequent  prose- 
cution in  such  a  case,  must  be  for  the  same  offence, 
or  for  an  offence  of  a  higher  degree,  and  necessarily 
including  the  offence  for  which  the  accused  stands  a 
second  time  indicted.  Thus,  a  conviction  under  an 
indictment  for  an  assault  is  no  bar  to  an  indictment 
for  an  assault  with  an  intent  to  rob,  because  the  pris- 
oner has  never  been  tried  on  an  indictment  which  in- 
volves an  issue  conclusive  upon  the  second  charge. 
On  the  other  hand,  if  one  be  acquitted  on  an  indict- 
ment for  manslaughter,  he  cannot  afterwards  be  tried 
for  murder,  because  the  acquittal  necessarily  involves 
the  finding  the  issue  of  killing,  whether  with  or  with- 
out malice,  in  favor  of  the  defendant.1  And  this  would 
be  true,  even  if  the  judge  should  discharge  the  jury  on 

1  State  v.  Foster,    33  Iowa,  525 ;  Scott  v.  United  States,  Morris, 
142. 


GENERAL  PRINCIPLES.  43 

the  ground  that  the  proof  made  the  case  one  of  mur- 
der.1 The  offence  is  the  same  if  the  defendant  might 
have  been  convicted  on  the  first  indictment  by  proof 
of  the  facts  alleged  in  the  second.  The  question  is 
not  whether  the  same  facts  are  offered  in  proof  to  sus- 
tain the  second  indictment  as  were  given  in  evidence 
at  the  trial  of  the  first,  but  whether  the  facts  are  so 
combined  and  charged  in  the  two  indictments  as  to 
constitute  the  same  offence.  It  is  not  sufficient  that 
the  facts  on  which  the  two  indictments  are  based  are 
the  same.  They  must  be  so  alleged  in  both  as  to  con- 
stitute the  same  offence  in  degree  and  kind.2 

A  conviction  or  acquittal  on  a  charge  of  larceny  of 
one  of  several  articles,  all  stolen  at  the  same  time,  is  a 
good  plea  in  bar  of  any  subsequent  prosecution  for  the 
larceny  of  either  or  all  of  the  other  articles.3 

The  trial  and  jeopardy  begin  when  the  accused  has 
been  arraigned  and  the  jury  impanelled  and  sworn.4 

§  41.  Jurisdiction.  — As  a  rule,  an  offence  against 
the  laws  of  one  sovereignty  is  no  offence  against 
the   laws   of   another ;   and   one   sovereignty  has  no 

1  People  v.  Hunckeller,  48  Cal.  331.  See  also  upon  the  general 
subject,  as  involving  the  different  views  of  different  courts,  Com.  v. 
Sardinian,  9  Allen  (Mass.),  487;  State  v.  Nutt,  28  Vt.  598  ;  State  v. 
Imiess,  68  Me.  536;  Roberts  v.  State,  14  Ga.  8;  Wilson  v.  State,  24 
Conn.  57;  State  v.  Pitts,  57  Mo.  85;  State  v.  Cooper,  1  Green  (N.  J.), 
- » *  *  1  ;  and  1  Bishop  Cr.  Law,  c.  63,  where  the  whole  subject  is  treated 
with  great  fulness. 

2  Com.  v.  Clair,  7  Allen  (Mass.),  525;  People  V.  Warren,  1  Park. 
(N.  Y.)  C.  R.  338;  Rex  v.  Vandercomb,  2  Leach  (4th  ed.),  708;  Dur- 
ham v.  People,  4  Scam.  (111.)  172. 

3  Jackson  v.  State,  14  Ind.  327.  See  also  Guenther  v.  People,  24 
N.  Y.  100;  Fisher  v.  Tom.,  1  Bush  (Ky.),  211. 

4  Com.  v.  Tuck,  20  Pick.  (Mass.)  356;  Bryain  v.  State,  34  Ga. 
323;  Ferris  •■.  People,  48  Barb.  (N.  Y.)  17. 


44  CRD1INAL  LAW. 

jurisdiction  over,  and  will  not  undertake  to  punish, 
crimes  committed  in  another.  Where,  however,  a 
criminal  act  perpetrated  in  one  State  or  foreign  sov- 
ereignty, by  continuity  of  operation  takes  effect  in 
another,  the  courts  of  the  latter  have  jurisdiction  to 
punish  the  crime  as  if  all  the  res  gestce  had  taken 
place  within  its  territory.  If,  for  instance,  a  man 
standing  on  one  side  of  the  boundary  between  two 
States  intentionally  discharges  a  gun  at  a  person 
standing  on  the  other  side  of  the  boundary,  and  in- 
jures him,  the  offence  may  be  punished  at  the  domicile 
of  the  injured  party.1  So  if  a  man  resident  in  one  sov- 
ereignty sends  an  innocent  agent  into  another,  who  by 
means  of  false  pretences  obtains  money  from  a  person 
resident  in  the  latter,  the  principal  is  guilty  of  an 
offence  in  the  latter,  and  may  be  punished  by  its  tri- 
bunals, if  the  offender  be  found  within  the  limits  of 
their  jurisdiction.2 

So  it  has  been  held  that  a  larceny  of  goods  in  one 
jurisdiction  is  a  larceny  in  every  jurisdiction  where 
the  thief  may  be  found  with  the  stolen  goods ;  but 
upon  this  point  the  authorities  are  not  uniform.3  A 
robber,  however,  in  one  jurisdiction  becomes  merely  a 
thief  in  another,  by  taking  his  stolen  goods  into  the 
latter.4     And  in  a  very  recent  case,5  an  indictment 

1  Com.  v.  Macloon,  101  Mass.  1.  See  also  1  Bishop  Cr.  Law, 
§  112  kt  serj.,  for  some  observations  tending  to  limit  the  doctrine  of 
Com.  v.  Macloon. 

"■■  Adams  v.  People,  1  Comst.  (N.  Y.)  173  ;  State  v.  Chapin,  17  Ark. 
601  ;  Johns  v.  State,  19  Ind.  421. 

3  3  Greenl.  Ev.  §  152,  note,  where  the  cases  pro  and  con  are  col- 
lected ;  Stanley  v.  State,  24  Ohio  St.  166  ;  Com.  v.  Uprichard,  3  Gray 
(Mass.),  434;  State  v.  Underwood,  49  Me.  181. 

4  1  Hale  P.  C.  507,  508 ;  2  Hale  P.  C.  103. 
6  Com.  v.  Wlute,  123  Mass.  450. 


GENERAL  PRINCIPLES.  45 

against  a  receiver  of  stolen  goods  alleged  to  have  been 
stolen  in  Massachusetts  was  upheld  upon  proof  that 
the  goods  were,  stolen  in  New  York,  and  taken  by  a 
New  York  receiver  into  Massachusetts,  and  there  sold 
to  the  indicted  receiver,  —  a  decision  the  soundness  of 
which  cannot  be  said  to  be  free  from  doubt. 

The  same  act  — counterfeiting,  for  instance —  may  be 
an  offence  against  two  sovereignties,  and  punishable  by 
both.1  So  a  bank  officer,  under  the  national  bank  law 
of  the  United  States,  may  be  punished  by  the  United 
States  for  wilful  misappropriation  of  the  funds  of  the 
bank,  and  also,  under  the  common  law,  for  larceny, 
or  for  embezzlement,  if  the  statute  make  it  embezzle- 
ment, by  the  State  in  which  the  act  is  done.2  Doubt- 
less, however,  a  prosecution  in  good  faith  by  one 
government  would  be  taken  into  consideration  by 
the  other.3 

In  many,  if  not  all  of  the  States,  it  is  provided  that 
whenever  a  crime  is  committed  within  a  certain  dis- 
tance of  a  county  line,  the  courts  of  either  county  may 
have  jurisdiction,  —  a  provision  rendered  necessary 
to  prevent  a  failure  of  justice,  from  failure  to  prove 
beyond  reasonable  doubt  the  exact  spot  where  the 
crime  was  committed. 

Where  lands  within  the  territorial  limits  of  a  State 
are  ceded  to  the  United  States,  exclusive  legislative 
and  judicial  authority  is  vested  in  the  United  States 
government,  by  the  Constitution  ;  and  they  may  exer- 
cise it,  unless  the  State,  by  the  act  of  cession,  reserves 

»  Fox  v.  Ohio,  5  How.  (U.  S.)  410  ;  Phillips  v.  People,  55  111.  429; 
Moore  v.  Illinois,  14  How.  (U.  S.)  13. 
2  Com.  v.  Barry,  116  Mass.  1. 
•  United  States  v.  Amy,  14  Md.  149. 


46  CRIMINAL  LAW. 

rights  inconsistent  with  the  exercise  of  such  authority.1 
For  the  purposes  of  jurisdiction,  a  private  vessel  upon 
the  high  seas  is  to  be  regarded  as  a  part  of  the  sov- 
ereignty whose  flag  she  carries,  and  crimes  committed 
on  board  of  her  while  at  sea  are  cognizable  only  by 
that  sovereignty.  "When,  however,  such  vessel  comes 
within  the  jurisdiction  of  another  power,  crimes  com- 
mitted on  board  of  her  are  cognizable  by  the  power  into 
whose  limits  she  has  come.2 

It  is  further  to  be  noted  that  jurisdiction  to  try  for 
the  commission  of  a  crime  is  conferred  by  the  law,  and 
not  by  the  consent  of  parties.3 

It  may  happen  that  an  attempt  to  commit  a  crime 
may  be  indictable  in  one  place,  while  the  crime  con- 
summated must  be  indicted  in  another ;  as  where 
one  encloses  a  forged  note  in  a  letter,  and  deposits  it 
in  one  post-office  directed  to  another,  the  depositing 
may  be  indicted  at  the  former  place  as  an  attempt  to 
utter,  while  the  consummated  crime  may  be  indicted 
in  the  latter  place.1  On  the  other  hand,  a  person  may 
be  convicted  of  embezzlement  by  the  tribunals  of  the 
State  in  which  he  was  intrusted  with  the  property 
embezzled,  although  the  fraudulent  conversion  took 
place  in  another  State.5 

§  42.  Benefit  of  clergy  was  an  old  common-law 
right  which  the  clergy  had,  when  they  were  charged 

1  Mitchell  v.  Tibbetrs,  17  Pick.  (Mass.)  298 ;  Wills  v.  State,  3 
Heisk.  (Tenn.)  141 ;  United  States  v.  Ward,  1  Wool.  C.  Ct.  17. 

2  People  v.  Tyler,  7  Mich.  161  ;  s.  c.  8  Mich.  320. 
8  People  v.  Granice,  50  Cal.  447. 

*  People  v.  Rathburn,  21  Wend.  (N.  Y.)  509;  William  Perkins' 
Case,  2  Lew.  C.  C.  150 ;  United  States  v.  Worrall,  2  Dall.  C  Ct. 
384;  Reg.  v.  Bnrdett,  3  B.  &  Aid.  717;  4  B.  &  Aid.  95. 

•  State  v.  Haskell,  33  Me.  127. 


GENERAL  PRINCIPLES.  47 

with  crime,  of  having  their  causes  transferred  to  the 
ecclesiastical  tribunals,  or,  after  conviction,  of  pleading 
certain  statutes  in  mitigation  of  sentence.  Of  its 
specific  character  and  its  limitations  it  is  not  pro- 
posed to  speak,  as  it  is  doubtful  if  it  is  a  right  which 
can  now  be  successfully  asserted  in  any  State  of  the 
Union.1 

§  43.  Christianity  a  Part  of  the  Common  Law. —  The 
general  maxims  and  precepts  of  Christianity  consti- 
tute a  part  of  the  common  law.2 

1  See  for  these  particulars,  1  Bishop  Cr.  Law,  §  38,  and  the  authori- 
ties by  trim  cited. 

2  People  v.  Ruggles,  8  Johns.  (N.  Y.)  290  ;  Updegraph  v.  Com.,  11 
S.  &  R.  (Pa.)  394;  Rex  v.  Wodston,  2  Stra.  834;  Vidal  v.  Girard'i 
Executors,  2  How.  (U.  S.)  127;  State  v.  Chandler,  2  Har.  (Del.)  663; 
Ex  parte  Delaney,  43  Cal.  478. 


48  CRIMINAL  LAW. 


CHAPTER   II. 


OF    PARTICULAR    CRIMES. 

j  c  /*  or ,fev  c.u-u  \> 

ABDUCTION.  v  N^n.<5 

§  44.  Abduction  was  made  a  crime  by  an  old  statute,1 
—  sufficiently  old  to  have  been  brought  with  our  an- 
cestors to  this  country  as  part  of  the  common  law.2 
The  specific  offence  seems  to  have  been  limited  to  the 
taking  away  for  lucre  —  no  doubt  by  force,  fraud,  or 
fear — of  adult  females,  "  maid,  widow,  or  wife,"  having 
property,  or  being  heirs  apparent,  for  the  purpose  of 
marriage.  A  taking  for  lucre  and  a  marriage  or  defile- 
ment are  essential  to  the  completion  of  the  offence.3 
And  perhaps  the  distinction  between  this  offence  and 
kidnapping  consists  in  this  limitation,  —  kidnapping 
relating  to  the  taking  away  any  person,  and  more  es- 
pecially children,  for  any  unlawful  purpose.  It  may 
be,  also,  that  abduction  might  be  complete  without 
taking  the  person  abducted  out  of  the  realm,  but  only 
from  home  to  some  other  place  within  the  realm  ;  while 
it  was  essential  to  the  act  of  kidnapping  that  the  per- 
son seized  should  be  taken  out  of  the  country,  or,  at 
all  events,  seized  with  that  intent.4  It  is  now  an  of- 
fence for  the  most  part  if  not  entirely  regulated  by 
statute. 

i  8  Hen.  VII.  c.  6. 

2  Com.  v.  Knowlton,  2  Mass.  534. 

3  Baker  v.  Hall,  12  Coke,  100. 

4  See  post,  Kidnapping. 


ABDUCTION.  49 

These  statutes  variously  describe  and  define  the 
offence.  "While  the  substance  is  substantially  the 
same  in  all,  yet  there  are  specific  differences  which 
distinguish,  and  leave  it  uncertain,  till  a  comparison  of 
the  statutes  solves  the  question,  whether  the  decisions 
in  one  State  are  applicable  to  the  statutes  in  another. 
Under  these  several  statutes  it  has  been  held  that  ab- 
duction "  for  the  purpose  of  prostitution,"  means  for 
general  and  promiscuous  illicit  intercourse.  A  mere 
seduction  and  illicit  intercourse  with  the  seducer  does 
not  amount  to  prostitution.1  Where  a  statute  provides 
that  the  person  so  abducted  must  have  been  of  pre- 
vious chaste  character,  the  abduction  of  a  person  who 
had  been  previously  a  prostitute  is  not  within  the 
statute,  unless  she  had  reformed.2  If  she  had  pre- 
viously had  intercourse  with  the  defendant  only,  it 
seems  that  this  cannot  be  held  to  be  conclusive  of  pre 
vious  unchaste  character.  The  unchastity  must  be 
with  other  men.3  In  a  very  recent  case,4  a  distinction 
is  made  between  the  phrase  "  of  previous  chaste 
character,"  as  used  in  the  statute  against  abduction, 
and  the  phrase  "  of  good  repute  for  chastity,"  used  in 
another  section  of  the  same  statute  against  seduction. 
In  the  former  case,  a  single  proven  act  of  illicit  inter 
course  is  admissible  in  defence,  as  the  issue  is  actual, 
personal  virtue ;  while  in  the  latter  case  it  might  not 
be,  as  reputation  is  the  issue.     But  the  distinction  is 

1  Cora.  v.  Cook,  12  Met.  (Mass.)  03;  State  v.  Stoyell,  54  Me.  21  ; 
State  v.  Ruhl,  8  Iowa,  447;  People  v.  Parshall,  6  Park.  (N.  Y.)  C.  Ii. 
129. 

-  Carpenter  v.  People,  8  Barb.  (N.  Y.)  603;  State  v.  Carron,  18 
Iowa,  72. 

«  State  v.  Willspansh,  11  Mich.  278. 

*  Lyons  v.  State,  62  Ind.  426. 

4 


50  CRIMINAL  LAW. 

between  "  character  "  used  in  one  statute,  and  "  repute  " 
used  in  the  other.  And  it  may  be  doubted  if  the 
distinction  is  not  too  fine.  Very  high  authorities 
treat  character  and  reputation  as  substantially  iden- 
tical.1 

It  is  also  held  under  these  statutes  that  within 
the  meaning  of  the  term  "  forcible  abduction "  are 
included  cases  where  the  mind  of  the  person  is 
operated  upon  by  falsely  exciting  fears,  by  threats, 
fraud,  or  other  unlawful  or  undue  influence  amount- 
ing substantially  to  a  coercion  of  the  will,  and  an 
effective  substitute  for  actual  force.2  And  a  child 
of  four  years  old  is  incapable  of  consenting  to  be 
taken  away  by  the  father  from  the  mother.3  Where  a 
statute  limits  the  offence  to  the  abduction  of  persons 
within  a  specified  age,  it  is  held  that  the  fact  that  the 
abductor  did  not  know,  or  even  the  fact  that  he  had 
reason  to  believe  and  did  believe,  that  the  person 
taken  away  was  not  within  the  designated  age,  is  im- 
material.    The  act  is  at  the  peril  of  the  perpetrator.4 


,  .  ABORTION. 

'  §  45.  Although  there  is 6  the  precedent  of  an  indict- 
ment for  an  attempt  to  procure  an  abortion  as  a  crime 
at  common  law,  and  it  has  been  said  by  a  distinguished 
text-writer6  that  the  procuring  an  abortion  is  an  in- 

1  See  1  Greenl.  Ev.  §  461  and  notes. 

2  Moody  v.  People,  20  111.  315 ;  People  v.  Parshall,  6  Park.  (N.  Y.) 
C.  R.  129. 

-»-"*!  State  v.  Farrar,  41  N.  II.  53.    See  also  post,  Seduction. 

"u^oX  *  State  v- Ruh1,  8  Iowa'  447 '  ante>  §  5' 

v  *  6  3  Chitty    Cr.  Law,  557. 
6  2  Wharf.  Cr.  Law,  §  1220. 


ABORTION.  51 

dietable  offence  at  common  law,  it  is  found  upon  exam- 
ination that  the  precedent  referred  to  is  for  an  assault, 
and  the  case l  relied  upon  as  an  authority  is  also  for 
an  assault.  Thj3_better  opjnioiiis^Jha^he^pr^c^nnj; 
an  abortion  is  not,  as  such,  an  indictable  offence  at 
c^mmon_Jaw,  although  the  acts  done  in  pursuance 
of  such  a  purpose  do  undoubtedly  amount  to  other 
offences  which  the  common  law  recognizes  and  pun- 
ishes. But  the  procuring  of  an  abortion  with  the 
consent  of  the  mother  before  she  is  quick  with  child 
is  not,  at  common  law,  even  an  assault,  the  consent  of 
the  mother  effectually  doing  away  with  an  element 
necessary  to  the  constitution  of  an  assault.2  The  pro- 
curing it  after  that  time  is  a  misdemeanor,  and  may 
be  a  murder.3 

Under  a  statute  punishing  the  procurement  of  an 
abortion  "  by  means  of  any  instrument,  medicine,  drug, 
or  other  means  whatever,"  the  indictment  charging 
that  the  defendant  beat  a  certain  pregnant  woman  with 
intent  to  cause  her  to  miscarry,  it  was  held  that  the 
case  was  not  made  out  by  proof  that  the  defendant 
beat  her  and  caused  her  thereby  to  miscarry,  unless 
the  beating  was  with  that  intent.4 

This  view  of  the  common  law  doubtless  led  to  such 
statutes  as  prevail  in  Massachusetts,  Vermont,  and 
New  York,  and,  probably,  most  of  the  other  States, 

1  Com.  v.  Demain,  6  Pa.  L.  J.  29.  A  later  case  in  Pennsylvania, 
however,  holds  that  an  indictment  will  lie.  Mills  v.  Com.,  1  Harris 
(Pa.),  631. 

2  But  see  post,  §  56,  as  to  effect  of  consent. 

8  Reg.  v.  West,  2  C.  &  K.  784;  Smith  v.  State,  33  Me.  48;  State 
r.  Cooper,  2  Zab.  (N.  J.)  52;  Com.  v.  Parker,  9  Met.  (Mass.)  2G3; 
Evans  v.  People,  49  N.  Y.  384. 

4  Slattery  v.  People,  76  111.  217.     See  also  ante,  §  8. 


52  CRIMINAL  LAW. 

punishing  the  procurement  of,  and  the  attempt  to  pro- 
cure, a  miscarriage,  under  which  it  is  held  that  the 
consent  of  the  woman  is  no  excuse,  and  that  the  crime 
may  be  committed  though  the  child  be  not  quick.1 
And  under  the  New  York  statute  the  woman  who 
takes  drugs  to  effect  a  miscarriage  is  equally  guilty 
with  the  person  who  administers  them  to  her.2  Yet 
she  is  not  strictly  an  accomplice,  the  law  regarding 
her  rather  as  a  victim  than  a  perpetrator.3 

Upon  general  principles,  as  we  have  already  seen, 
an  attempt  to  commit  a  statutory  misdemeanor  or  fel- 
ony is  itself  a  misdemeanor,  indictable  and  punisha- 
ble as  such  at  common  law.4 

'Sec  Sf>/6  tS.*r.   e~U.\r(',  ADULTERY.    h^^C^VZ^^f^^  e^^^Ai^uu, 

§  46.  Adultery  is  the  unlawful  and  voluntary  sexual 
^*~%  C  intercourse  between  two  persons  of  opposite  sexes,  one 
at  least  of  whom  is  married.  It  is  not  an  offence  at 
common  law,6  and  although  in  most  of  the  States  it  is 
now  made  criminal,  it  is  in  some  of  them  only  cogniza- 
ble in  the  ecclesiastical  tribunals.  The  foregoing  defi- 
nition is  based  upon  the  general  terms  of  the  statutes 
of  the  several  States  under  which  it  is  not  material 


. 


which  of  the  parties  is   married,  the   offence  being 
adultery  on  the  part  of  the  married  person,  and  forni- 

1  Cora.  v.  Wood,  11  Gray  (Mass.),  85;  State  v.  Howard,  32  Vt. 
380;  People  v.  Davis,  56  N.  Y.  95;  Mills  v.  Com.,  13  Pa.  St.  631; 
Cobel  v.  People,  5  Park.  (N.  Y.)  C.  R.  348.  See  also  State  v.  Murphy, 
3  Dutch.  (N.  J.)  112;  Willey  v.  State,  46  Ind.  363;  State  v.  Van 
Hooten,  37  Mo.  357. 

2  Frazer  v.  People,  54  Barb.  (N.  Y.)  306. 

8  Dunn  v.  People,  29  N.  Y.  523 ;  ante,  §  36. 
*  Ante,  §  28. 
4  Bl.  Com.  65. 


/-LV* 


ADULTERY.  53 

cation  on  the  part  of  the  unmarried.1  But  it  embraces 
a  wider  field,  no  doubt,  than  comes  within  the  original 
idea  of  adultery,  which  was  the  introduction  of  spuri- 
ous offspring  into  the  family,  whereby  a  man  may  be 
charged  with  the  maintenance  of  children  not  his  own, 
and  the  legitimate  offspring  be  robbed  of  their  lawful 
inheritance,  making  it  necessary  that  one  of  the  par- 
ties should  be  a  married  woman.  In  some  of  the 
States,  this  idea  still  prevails  as  to  criminal  prosecu- 
tions for  adultery,  while  in  suits  for  divorce  the 
intercourse  of  a  married  man  with  an  unmarried  wo- 
man is  held  to  be  adultery.2  The  statutes  of  the  sev- 
eral States  so  differ,  however,  that  while  in  some  States 
intercourse  of  an  unmarried  man  with  a  married  wo- 
man is  adultery  on  the  part  of  the  man,3  in  others, 
intercourse  by  a  married  man  with  an  unmarried  wo- 
man is  not  adultery  on  the  part  of  the  latter,4  and 
in  others,  an  unmarried  man  cannot  commit  adul- 
tery.5 

That  the  parties  cohabited  in  the  honest  belief  that 
they  had  a  right  to,  and  did  not  intend  to  commit  tlie 
crime,  is  nu  defence,  as  has  already  been  shown.6 

"  Open  and  notorious  adultery  "  cannot  be  shown 
by  the  mere  act  of  adultery.  The  fact  of  openness 
and  notoriety  must  be  proved,  and  that  the  party 
charged  publicly  and  habitually  violated  the  law.7     So 

1  State  v.  Hutchinson,  36  Me.  261 ;  Miner  v.  People,  68  111.  59. 

2  State  v.  Armstrong,  1  Minn.  335. 

8  State  v.  Wallace,  9  N.  II.  515;  State  v.  Pearce,  2  Blackf.  (Intl.) 
J18  ;  State  v.  Weatherby,  43  Me.  258. 

4  Cook  v.  State,  11  Ga.  53 ;  State  v.  Armstrong,  4  Minn.  835. 
6  Respub.  v.  Roberts,  2  Dall.  (U.  S.)  124. 

6  Ante,  §  5  ;  State  v.  Goodenow,  65  Me.  30. 

7  State  v.  Owner,  56  Mo.   147;    People  v.  Gates,  46  Cal.  52; 


54  CRIMINAL  LAW. 

"  living  in  adultery  "  means  more  than  a  single  act  of 
illicit  intercourse.1 

AFFRAY. 

§  47.  An  affray  is  the  fighting,  by  mutual  consent, 
of  two  or  more  persons  in  some  public  place,  to  the  ter- 
ror of  the  people.2  The  meaning  of  the  word  is,  that 
which  frightens  ;  and  the  offence  consists  in  disturbing 
the  public  peace  by  bringing  on  a  state  of  fear  by  means 
of  such  fighting,  or  such  threats  of  fighting  as  are  calcu- 
lated to  excite  such  fear,  whether  there  be  actual  fear  or 
not  being  immaterial.  Mere  wordy  dispute,  therefore, 
without  actual  or  threatened  violence  by  one  party  or 
the  other,  does  not  amount  to  an  affray.3  But  if 
actual  or  threatened  violence  is  resorted  to  by  one, 
who  is  provoked  thereto  by  the  words  of  the  other, 
this  will  make  the  latter  guilty.4  It  is  sometimes  held 
that  consent  is  not  essential.6  But  it  is  obvious  that  one 
who  is  assaulted,  and  merely  uses  such  force  as  is  nec- 
essary to  beat  off  his  assailant,  is  guilty  of  no  offence. 
He  is  not  fighting,  in  the  sense  of  the  definition,  but  is 
merely  exercising  his  right  of  self-defence.6 

The  place  must  be  a  public  one.     A  field,  therefore, 

Wright  v.  State,  5  Blackf.  (Ind.)  358;  State  v.  Marvin,  12  Iowa,  499; 
Miner  v.  People,  58  111.  59  ;  Carrotti  v.  State,  42  Miss.  334. 

1  Smith  v.  State,  39  Ala.  554 ;  Richardson  v.  State,  37  Tex.  346. 

2  Wilson  v.  State,  3  Heisk.  278;  Simpson  v.  State,  5  Yerg.  (Tenn.) 
356  ;  4  Bl.  Com.  146. 

8  State  v.  Sumner,  5  Strobh.  (S.  C.)  53;  Hawkins  v.  State,  13  Ga. 
322 ;  State  v.  Downing,  74  N.  C.  184. 

*  State  v.  Sumner,  5  Strobh.  (S.  C.)  53;  Hawkins  v.  State,  13  Ga. 
322;  State  v.  Downing,  74  N.  C.  184;  State  v.  Perry,  5  Jonea 
(N.  C),  9.    But  see  contra,  O'Neil  v.  State,  16  Ala.  65. 

6  Cash  v.  State,  2  Overt.  (Tenn.)  198. 

«  See  also  Klum  v.  State,  1  Blackf.  (Ind.)  377. 


AFFRAY.     APOSTASY.  55 

surrounded  by  a  dense  wood,  a  mile  away  from  any 
highway  or  other  public  place,  does  not  lose  its  pri- 
vate character  by  the  casual  presence  of  three  persons, 
two  of  whom  engage  in  a  fight.1  An  enclosed  lot, 
however,  in  full  view  of  the  public  street  of  a  village, 
thirty  yards  distant,2  is  a  public  place,  though  a  high- 
way itself  is  not  necessarily  a  public  place,  because  by 
disuse  or  the  undergrowth  of  trees,  or  otherwise,  it 
may  have  become  concealed  from  public  view.3  A 
fight  begun  in  private,  and  continued  till  a  public 
place  is  reached,  becomes  an  affray.4 

By  the  definition,  it  requires  two  to  make  an  affray. 
If,  therefore,  one  of  two  indicted  persons  be  acquitted, 
the  case  fails  as  to  the  other.5 

APOSTASY. 

§  48.  Apostasy  stands  at  the  head  of  the  list  of 
crimes  against  religion  of  which  the  ancient  common 
law  took  cognizance,  and  is  defined  as  a  total  renunci- 
ation of  Christianity  by  one  who  has  embraced  it.6 
The  Church  of  England  was  and  is  a  State  institution, 
and  it  has  been  deemed  to  be  the  duty  of  the  State  to 
protect  it,  and  through  it  the  State  religion.  Hence 
the  common  law  punished  whatever  was  calculated  to 
injure  or  degrade  it.  Out  of  this  view  of  State  policy 
grew  the   common-law  crimes   of   Apostasy,  Heresy, 

1  Taylor  v.  State,  22  Ala.  15.  See  also  State  v.  Heflin,  8  Humph. 
(Tenn.)  84. 

2  Carwile  v.  State,  35  Ala.  392. 

3  State  v.  Weekly,  29  Ind.  206. 

4  Wilson  v.  State,  3  Heisk.  (Tenn.)  278. 

6  Hawkins  v.  State,  13  Ga.  822,     See  also  Riot. 
6  4  Bl.  Com.  42. 


56  CRIMINAL  LAW. 

Simony,  Non- Conformity,  Reviling  the  Ordinances  of 
the  Church,  Blasphemy,  and  Profane  Cursing  and 
Swearing,  —  neither  of  which  it  is  believed,  except  the 
last  two,  which  only,  therefore,  will  be  specially  noticed 
in  their  proper  places,  have  ever  been,  or  are  likely  to  be, 
here  recognized  as  crimes  against  the  State  ;  for  though, 
as  has  already  been  seen,1  Christianity  is  a  part  of  the 
common  law  in  this  country  as  well  as  in  England,  yet 
as  we  have  no  established  church  and  no  established 
religion  to  which  the  State  is  bound  to  extend  its  pro- 
tection, most  of  these  offences  are  left  to  the  disci- 
pline of  the  various  religious  bodies  in  which  they  may 
arise.  Blasphemy  and  profane  cursing  and  swearing, 
however,  being  offences  against  good  morals,  as  well 
as  hostile  to  the  spirit  of  Christianity,  have,  by  excep- 
tion, in  this  country  been  held  indictable.2 

LARSON.    W^U 

§  49.  Arson  is  the  malicious  burning  of  another's 
dwelling-house. 

It  is  an  offence  against  the  security  afforded  by  a 
man's  dwelling-house  ;  and  the  law  looks  upon  it  in  this 
light,  rather  than  as  an  injury  to  his  property.  It  re- 
gards the  violation  of  the  sanctity  of  one's  abode  as  a 
much  graver  offence  than  the  mere  injury  to  his  prop- 
erty, just  as  it  regards  the  larceny  of  a  watch  from  the 
person  or  from  a  building  as  a  graver  offence  than  the 
simple  larceny  of  the  watch  without  these  attendant 
circumstances.3 

§  50.   Dwelling-house.      What  it  embraces.  —  At  com- 

1  Ante,  §  43. 

2  See  1  Bl.  Com.  bk.  4,  c.  4.     See  also  Blasphemy. 

3  People  v.  Gates,  15  Wend.  (N.  Y.)  159. 


ARSON.  57 

mon  law  the  term  "  dwelling-house"  embraced  all  out- 
houses within  the  same  curtilage,  and  used  as  part  and 
parcel  of  the  residence,  though  not  under  the  same 
roof.1  Curtilage  means  an  enclosure  of  a  piece  of  land 
around  a  dwelling-house,  usually  including  the  build- 
ings occupied  in  connection  with  the  use  of  the  dwell- 
ing-house, whether  the  enclosure  be  made  by  a  fence 
or  by  the  buildings  themselves.2 

§51.  Dwelling-house.  Ownership.  —  Simply  burn- 
ing one's  own  house  is  not  arson,  nor  any  offence,  at 
common  law,  unless  it  be  accompanied  by  a  design 
to  injure.3  But  by  statute  in  some  of  the  States 
the  wilful  and  malicious  burning  of  any  building  is 
made  punishable ;  and  in  such  case  the  owner  may  be 
guilty  of  the  offence  by  burning  his  own  barn.4  He 
may  be  said  to  own  the  house  who  has  the  right  of 
present  possession,  as  the  lessee  or  mortgagor  before 
foreclosure.5  A  husband  is  not  guilty  of  the  crime 
who  burns  the  house  which  he  jointly  occupies,  as 
tenant  by  the  curtesy,  with  his  wife  who  owns  the  fee  ; 
nor  the  wife  who  sets  fire  to  her  husband's  house  ; 6 
though  a  widow  whose  dower  has  not  been  assigned, 
and  who  has  no  present  right  of  possession,  the  house 
being  occupied  by  a  tenant,  may  be  guilty  of  it.     So  of 

i  4  Bl.  Com.  221. 

2  Com.  v.  Barney,  10  Cush.  (Mass.)  480;  post,  Burglary  ;  Bishop, 
Stat.  Crimes,  §  277  et  seq. ;  People  v.  Taylor,  2  Mich.  260. 

8  Bloss  v.  Tobey,  2  Pick.  (Mass.)  325. 

*  State  v.  Hurd,  61  N.  H.  176.  See  also  Shepherd  v.  People,  19 
N.  Y.  637. 

6  People  v.  Van  Blarcom,  2  Johns.  (N.  Y.)  105;  Rex  v.  Pedley, 
1  Leach  Cr.  Law  (4th  ed.),  242;  Spalding's  Case,  1  Leach  Cr.  Law, 
218. 

«  Snyder  v.  People,  26  Mich.  106;  Rex  v.  March,  1  Moody,  182. 


58  CRIMINAL  LAW. 

a  reversioner  who  burns  the  house  before  the  tenant's 
right  of  occupation  has  expired.1  A  servant,  though 
living  in  the  house,  yet  having  no  right  of  possession, 
may  commit  the  crime  ; 2  but  a  tenancy  for  a  year,  or 
any  special  ownership  which  carries  with  it  the  right 
of  possession  at  the  time  of  the  burning,  is  sufficient 
to  exempt  from  guilt.3 

§  52.  Dwelling-house.  Occupation.  —  The  building 
will  be  considered  a  dwelling-house  within  the  mean- 
ing of  the  law,  if  actually  occupied  as  such,  though 
it  may  not  have  been  erected  for  that  purpose,  and 
may  also  be  occupied  for  other  purposes,  as  for  a  jail, 
or  a  building  occupied  in  part  as  a  lodging-house.4 
It  must  be  in  some  substantial  sense  an  occupied 
house,  and  that,  by  the  person  alleged  to  be  the  owner. 
It  is  not  necessary  that  he  should  be  actually  present 
in  the  house  at  the  time  of  the  burning.  If  the  house 
contain  the  occupant's  effects,  and  he  has  the  de- 
sign to  return,  after  a  temporary  absence,  this  is  a 
sufficient  occupation  to  constitute  it  a  dwelling-house.5 
Mere  ownership,  without  occupancy  by  the  owner,  is 
not  sufficient.6  Nor  is  the  fact  that  it  is  habitable  and 
intended  for  occupancy,  unless  it  is  also  in  some  sense 
used  as  a  place  of  residence.7     It  must  be  a  completed 

1  Reg.  v.  Harris,  Fost.  Cr.  Law,  113. 

2  Rex  v.  Gowen,  2  East  P.  C  1027. 

8  McNeal  v.  Woods,  3  Blackf.  (Ind.)  485 ;  2  East  P.  C.  1022 ; 
People  v.  Gates,  15  Wend.  (N.  Y.)  169;  State  v.  Lyon,  12  Conn. 
487.     See  also  post,  Burglary. 

*  People  v.  Orcutt,  1  Park.  C.  R.  252 ;  People  v.  Cotteral,  18  Johns. 
(N.  Y.)  115. 

6  State  v.  Johnson,  48  Ga.  116 ;  State  v.  Toole,  29  Conn.  342. 

6  Com.  v.  Barney,  10  Cush.  (Mass.)  478. 

7  State  v.  Warren,  33  Me.  30;  Hooker  v.  Com.,  13  Grat.  (Va.) 
763. 


ARSON.  59 

house,  ready  for  occupancy,   and   not  an  abandoned 
one,  unfit  for  habitation.1 

§  53.  Malice.  —  The  malice  requisite  to  constitute 
the  crime  is  that  general  malice  which  accompa- 
nies a  criminal  purpose.  Carelessness  or  negligence, 
without  a  specific  intent  unlawfully  to  burn  or  to  do 
some  other  wrong,  does  not  constitute  the  malice  which 
is  an  essential  ingredient  in  the  crime  of  arson.2  But 
when,  intending  to  burn  the  house  of  one,  the  accused 
burns  the  house  of  another,  the  crime  is  committed. 
Arson  being  intended  and  committed,  it  is  not  permis- 
sible that  the  guilty  party  should  escape  the  conse- 
quences, by  alleging  his  mistake  as  to  one  of  the 
varying  incidents  of  the  crime.  So  far  as  the  public 
offence  is  concerned,  it  is  immaterial  whether  the  house 
burned  be  that  of  one  person  or  another.3  And  one 
may  be  guilty  of  arson  by  setting  fire  to  his  own  house, 
whereby  the  house  of  another  is  burned,  if  the  prox- 
imity was  such  that  the  burning  of  the  latter  was  the 
natural  and  probable  consequence  of  burning  the  for- 
mer.4 If  the  burning  accomplished  was  not  with  a 
felonious  intent,  but  for  a  purpose  which,  if  accom- 
plished, would  constitute  a  crime  of  a  grade  below  a 
felony,  as  where  a  prisoner  sets  fire  to  the  jail  in  which 
he  is  confined,  with  the  purpose  of  thereby  effecting 
his  escape,  this,  it  has  been  held,  is  not  arson,  if  the 
attempt  to  escape  is  only  a  misdemeanor.5     But  the 

1  State  v.  McGowen,  20  Conn.  245;  Elsmore  v.  St.  Briacels,  4  B. 
&  C.  461.     See  also  McGary  v.  People,  45  N.  Y.  153. 

2  4  Bl.  Com.  222. 

8  1  Hale  P.  C.  569 ;  1  Hawk.  P.  C.  c.  39,  §  19. 
4  2  East  P.  C.  1031. 

6  People  i\  Cotteral,  18  Johns.  (N.  Y.)  115;  Delany  p.  State,  41 
Tex.  601  ;  State  v.  Mitchell,  6  Ired.  (N.  C.)  350. 


60  CRIMINAL  LAW. 

contrary  lias  been  held  in  Alabama;1  and  in  England 
a  person  who  set  the  fire,  for  the  purpose  of  getting  the 
reward  offered  for  the  earliest  information  of  it,  was 
held  guilty  of  arson.2 

The  cases,  however,  upon  this  point  seem  to  be 
wholly  irreconcilable.  Where  there  is  the  intent  to 
burn,  coincident  with  the  act  of  burning,  the  crime 
seems  to  be  complete,  upon  general  and  well-settled 
principles  and  according  to  every  definition ;  and  the 
fact  that  the  burning  was  the  secondary  rather  than 
the  primary  purpose  —  a  felonious  means  to  an  un- 
lawful but  not  felonious  end  —  does  not  seem  to  relieve 
it  in  any  respect  or  degree  of  its  criminality.  It  sounds 
strangely,  and  seems  not  in  accordance  with  sound  rea- 
son or  public  policy,  that  one  who  intentionally  com- 
mits a  felony  and  a  misdemeanor,  —  the  former  as  a  step 
towards  the  latter,  —  shall  be  deemed  less  guilty  than 
he  would  have  been  if  the  commission  of  the  felony  had 
been  his  sole  purpose,  and  he  had  committed  no  mis- 
demeanor.3 The  failure  to  observe  the  distinction 
between  intent  and  motive  —  the  former  of  which 
qualifies  the  act,  while  the  latter  moves  to  it  *  —  has 
doubtless  led  to  the  confusion.  The  man  who  delibe- 
rately sets  fire  to  and  burns  a  jail  intends  to  burn  it, 
whether  his  motive  be  self-sacrifice,  revenge,  escape, 
or  reward.5  The  case  might  be  different  if,  while  a 
party  is  stealing  in  a  building,  he  accidentally,  by  drop- 
ping a  match,  sets  fire  to  the  building.     It  has  been 

i  Luke  v.  State,  49  Ala.  30. 

2  Reg.  v.  Regan,  4  Cox  C.  C.  335. 

3  See  1  Bishop,  Cr.  Law,  §§  323-345 ;  2  Bishop  Cr.  Law,  §§  14, 15. 
*  Ante,  §  6. 

6  Reg.  v.  Regan,  4  Cox  C.  C.  335. 


ARSON.    ASSAULT.  61 

recently  held  in  Ireland  that  tills  would  not  be  ar- 
son.1 But  this  is  doubtful  if  there  is  any  malice  or 
evil  intent  in  the  crime  intended,  —  if  it  be  not  a  mere 
malum  prohibitum? 

§  54.  Burning  means  an  actual  combustion  of  some 
portion  of  the  house,  so  that  the  wood  is  actually  on 
fire.  It  is  sufficient  if  it  is  charred.  It  is  not  neces- 
sary that  it  be  consumed  or  destroyed.3 

ASSAULT. 

•  §  55.  Strange  as  it  may  seem,  there  is  no  definition 
of  an  assault  which  meets  unanimous  acceptance.  The  ! 
more  generally  received  definition  is  that  of  Hawkins,4 
to  wit :  "  An  attempt  or  offer  with  force  and  vjjolejice 
to  do  a  corporal  hurt  to  another."  "We  have  already 
^u.^  seen6  that  to  constitute  an  attempt  there  must  be 
^^some  overt  act  in  part  execution  of  a  design  to  com- 1 

mit  a  crime ;  and  upon  the  theory  that  an  assault  is 
ftj^but  an  attempt,  it  is  held  that  a  mere  purpose  to  com- 
^x^-"  mit  violence,  unaccompanied  by  any  effort  to  carry  it 
"  into  immediate  execution,  is  not  an  assault.     The  vio- 
lence which  threatens  the  "  corporal  hurt,"  or,  as  it 
«jw  *^J8^re(luently  expressed,  "  personal  injury  "  or  "  bodily 

i  Reg.  v.  Faulkner,  11  Irish  L.  T.  R.  130. 

2  2  Russ.  on  Crimes,  486. 

3  People  v.  Haggerty,  46  Cal.  354 ;  Com.  v.  Tucker,  110  Mass.  403  ; 
People  v.  Butler,  16  Johns.  (N.  Y.)  203;  Mary  v.  State,  24  Ark.  44. 
The  statutes  of  most  if  not  all  the  States  have  modified  the  common 
law  of  arson  to  a  greater  or  less  extent ;  and  while  decisions  will  be 
found  apparently  inconsistent  with  the  principles  stated  in  the  text.it 

,  (£will  doubtless  be  found  that  such  decisions  depend  upon  the  peculiari- 
«^jv..  ties  of  the  respective  statutes. 
jjC  ^         4  1  P.  C.  c.  62,  §  1. 
»  Ante,  §  29. 


62  CRIMINAL  LAW. 


fc 


^harrn,"  must  be  set  in  motion.1  It  is  the  beginning  rS<Q 
cof  an  act,  or  of  a  series  of  acts,  which,  if  consummated, 
i  will  amount  to  a  battery,  which  is  the  unlawful  ap-  £-r 
>.,  i  plication  of  violence  to  the  person  of  another.2  One, 
j  therefore,  who,  within  such  proximity  to  another  that 
\  he  may  inflict  violence,  lifts  his  hand,  either  with  or 
'without  a  weapon,  with  intent  to  strike,  or  lifts  a  stone  r 

with  intent  to  hurl  it,  or  seizes  a  loaded  gun  with  in- 
itent  to  shoot  it,  is,  upon  all  the  authorities,3  guilty  of 
an  assault.  r~k.** 

5  56.    Unlawfulness.     Consent. — The  force  to  COnstl- 

o  •        v     7 

tute  an  assault  must  be  unlawful.  A  parent,  or  other 
;  person  standing  in  loco  parentis,  may  use  a  reasonable 
/amount  of  force  in  the  correction  of  his  child.4  So  a 
^schoolmaster  may  correct  his  pupil;  or  a  master  his 
/apprentice;5  but  the  master's  authority  is  personal,  Jpj 
•Hand  cannot  be  delegated  to  another,  as  can  that  of  a       *p 

parent.6     An  officer  may  also  use  such  force  in  mak-       • 

.ng  an  arrest;7  and,  generally,  all  persons  having 
Tthe  care,  custody,  and  control  of  public  institutions, 
g)and  charged  with  the   duty  of  preserving  order  and 

preventing  their  wards  from  self-injury,  such  as  the 


superintendents  of  asvlums  and  almshouses.8     So  the 


U 


superintendents  of  asylums  and  almshouses 

1  People  v.  Yslas,  27  Cal.  630 ;  Smith  v.  State,  39  Miss.  521. 

2  See  Battery. 

3  United  States  v.  Hand,  2  Wash.  (U.  S.  C.  Ct.)  35 ;  State  v.  Mor- 
j  gan,  3  Ired.  186  ;  Higginbotham  v.  State,  23  Tex.  574.  The  Penal 
|  Code  of  Texas  defines  an  assault  as  "  Any  attempt  to  commit  a 
'  battery,  or  any  threatening  gesture,  showing  in  itself,  or  by  words 

accompanying  it,  an  immediate  intention,  coupled  with  an  ability,  to 
r.'ommit  a  battery."     Art.  476.  .    . 

4  State  v.  Alford,  68  N.  C.  322. 

6  Gardner  v.  State,  4  Ind.  632.  ^   *   &  o^>o  l-ovo-mA 

,;  People  v.  Phillips,  1  Wheeler  C.  C.  155.   .     y  »  \^r^  o-^CiTviul^ 

»  Golden  v.  State,  1  Rich.  n.  8.  (S.  C.)  292>  "A    ^n  . 

8  State  v.  Hull,  34  Conn.  132. 
t 


ASSAULT.  63 


conductor  of  a  railway  train  may  forcibly  put  from 
his  train  any  person  guilty  of  such  misconduct  as  dis- 
turbs the  peace  or  safety  of  the  other  passengers,  or 
violates  the  reasonable  orders  of  the  company.1     And 
so  may  the  sexton  of  a  church  2  in  a  like  way  protect 
a  lawful  assembly  therein.     This  right,  however,  must 
be  exercised  with  discretion,  and  must  not,  in  degree 
or  in  kind  of   force,  surpass  the  limits  of  necessity.!  s 
and   appropriateness.3      The  modern  tendency   is  to 
construe  strictly  against  the  person  using  the  force.  >=>C 
It  was  formerly  held  that  a  husband  might  correct  his  > 
wife  by  corporal  chastisement;  but  this  is  now  denied  I 
to  be  law  in  some  of  the  States,  and  it  is  doubtful  if  ' 
the  practice  would  be  upheld  by  the  courts  of   any 
State.4     The   mere   relationship   of   master   and   ser-   - 
vant,  the  former  not  being  charged  with  any  duty  ol  jjj 
education  or  restraint,  will  not  now,  whatever   may  r 
have  been  the   law   heretofore,  authorize   the  use  of 
force.6 

In  some  cases  there  may  be  an  assault  when  the 
injured  party  apparently  consents  to  the  unlawful  act, 
as  where  a  female  patient  is  deceived  by  a  physician 
into  consenting  that  improper  liberties  should  be  taken 
with  her.6  So,  where  a  female  pupil  of  tender  years, 
by  the  dominating  power  of  her  teacher,  is  induced, 

1  People  v.  Caryl,  3  Park.  C.  C.  (N.  Y.),  326;  State  v.  Goold,  53 
Me.  279. 

2  Com.  v.  Dougherty,  107  Mass.  243. 
8  Com.  1-.  Randall,  4  Gray  (Mass.),  36. 
*  Com.  v.  McAfee,  108  Mass.  458;  State  v.  Oliver,  70  N:  C.  60; 

Gorman  v.  State,  42  Tex.  221  ;  Fulgliam  v.  State,  46  Ala.  108.     See 
also  Mr.  Green's  note  to  Com.  «;.  Barry,  2  Green   Cr.  Law  Hep.  288. 

5  Matthews  o.  Terry,  10  Conn.  455. 

6  Reg.  v.  Case,  1  Den.  C.  C.  580. 


64  CRIMINAL  LAW. 

without  resistance,  to  permit  the  same  thing.1  But 
when  a  person  sin  juris,  without  fraud  or  coercion, 
consents  to  the  application  of  force,  certainly,  if  the 
force  be  such  as  may  be  lawfully  consented  to,  there 
can  be  no  assault.  It  has  been  accordingly  held  that 
if  a  woman  consents  to  her  own  dishonor,2  or  to  the 
use  of  instruments  whereby  to  procure  an  abortion,3 
or  one  requests  another  to  lash  him  with  a  whip,4  — 
these  several  acts  do  not  constitute  assaults,  because 
they  are  assented  to  by  the  parties  upon  whom  the 
force  is  inflicted.  So  prize-fighters,  for  the  same 
reason,  have  been  held  not  to  be  guilty  of  an  assault 
upon  each  other.6  But  it  has  also  been  held  that  if  two 
go  out  to  fight  in  anger,  each  is  guilty  of  an  assault.6 
It  is  doubtful  whether,  upon  principle,  the  existence 
of  anger  can  be  of  any  moment,  if  there  is  a  mutual 
agreement  to  fight.  Under  certain  circumstances,  such 
fighting  may  amount  to  a  breach  of  the  peace  ;  and  if 
in  a  public  place,  and  to  the  terror  of  other  people,  it 
would  be  an  affray.7  But  whatever  else  they  may  be 
guilty  of,  —  consent  certainly  not  authorizing  a  breach 
of  the  peace,  or  an  affray,  or  the  procurement  of  an 
abortion,  —  there  seems  no  warrant  in  the  law  for 
holding  that  one  may  be  guilty  of  an  assault  by  the 
application  of  force  to  another,  to  which  the  latter 
deliberately  consents.  Still,  there  is  high  authority  for 
the  proposition,  that  where  two  parties  go  out  by  con- 

i  Reg.  v.  Nichol,  R.  &  R.  130;  Reg.  v.  Lock,  12  Cox  C.  C  244. 

2  People  v.  Bransby,  32  N.  Y.  525. 

3  Ante,  §  45. 

4  State  v.  Beck,  1  Hill  (S.  C),  363. 

5  Champer  v.  State,  14  Ohio  St.  437. 
«  Reg.  v.  Lewis,  1  C.  &  K.  419. 

7  See  ante,  Affray. 


ASSAULT.  65 

sent  and  fight  with  their  fists,  each  commits  an  assault 
by  the  other,  though  there  is  entire  absence  of  anger 
or  ill-will.1 

Consent,  however,  is  to  be  distinguished  from  sub- 
mission. An  idiot,2  or  a  person  asleep  3  or  otherwise 
insensible,4  or  demented,6  or  deceived,6  may  submit, 
but  he  does  not  consent.  Consent  is  the  affirmative 
act  of  an  unconstrained  will,  and  is  not  sufficiently 
proved  by  the  mere  absence  of  dissent.7 

§  57.  Degree  of  Force.  Mode  of  Application.  —  The 
degree  of  force  used  is  immaterial,  provided  it  be  un- 
lawful. The  least  intentional  touching  of  the  person, 
or  of  that  which  so  appertains  to  the  person  as  to  par- 
take of  its  immunity,  if  done  in  anger,  is  sufficient. 
Thus,  to  throw  water  upon  the  clothes,8  to  spit  upon, 
push,  forcibly  detain,  falsely  imprison,  and  even  to 
expose  to  the  inclemency  of  the  weather,  are  all  acts 
which  have  respectively  been  held  to  constitute  an  as- 
sault.9 So  any  forcible  taking  of  property  from  the 
possession  of  another,  by  overcoming  the  slightest  re- 
sistance, is  an  assault.10  Nor  need  the  application  of 
force  be  direct.     If  the  force  unlawfully  set  in  motion 

1  Com.  v.  Colberg,  119  Mass.  350. 
*  Reg.  v.  Fletcher,  8  Cox  C.  C.  131. 
8  Reg.  v.  Mayers,  12  Cox  C.  C.  311. 

4  Com.  v.  Burke,  105  Mass.  376 ;  People  v.  Queen,  50  Barb.  (N.Y.) 
128. 

5  Reg.  v.  Wardhurst,  12  Cox  C.  C.  443  ;  Reg.  v.  McGavernan,  6 
Cox  C.  C.  64. 

6  Com.  v.  Stratton,  114  Mass.  303. 

7  Reg.  v.  Lock,  12  Cox  C.  C.  244. 

8  People  v.  McMurray,  1  Wheeler  C.  C.  (N.  Y.)  62. 

9  1  Russ.  on  Crimes,  605;  State  v.  Baker,  65  N.  C.  332;  Long  v 
Rogers,  17  Ala.  540. 

10  State  v.  Gorham,  55  N.  H.  152. 

5 


66  CRIMINAL  LAW. 

is  communicated  to  the  person,  whether  directly,  by 
something  attached  to  the  person,  as  a  cane  or  a  cord, 
or  indirectly,  as  where  a  squib  is  thrown  into  a  crowd, 
and  is  tossed  from  one  to  another,  it  is  sufficient.  But 
the  mere  lifting  a  pocket-book  from  the  pocket  of 
another,  or  snatching  a  bank-bill  from  his  hand,  with- 
out overcoming  any  resisting  force,  is  not  an  assault.1 
So  setting  a  dog  or  a  crowd  upon  another,  or  driving 
against  the  carriage  in  which  he  is  seated,  or  striking 
the  horse  he  is  riding  or  driving,  in  either  case  to  his 
injury,  will  constitute  an  assault.2 

§  58.  Mode  of  Application.  —  It  was  formerly  held 
that  to  put  a  deleterious  drug  into  the  food  of  an- 
other, if  it  be  eaten  and  take  effect,  was  an  assault.3 
But  upon  subsequent  consideration  it  was  held  that 
the  direct  administration  of  a  deleterious  drug,  with- 
out force,  though  ignorantly  taken,  is  not  an  assault,4 
—  overruling  the  previous  case.  A  contrary  result, 
however,  has  been  reached  in  this  country  by  a  court 
of  high  authority,  and  with  the  reasoning  of  the  two 
just  cited  cases  before  it,  —  the  doctrine  of  the  earlier 
case  being  approved  ;  and  it  is  said  that  it  cannot 
be  material  whether  the  force  set  in  motion  be  mechani- 
cal or  chemical,  or  whether  it  acts  internally  or  exter- 
nally.5 

The  detention  or  imprisonment  of  a  person  by 
merely  confining  him  in  a  place  where  he  happens  to 

1  Com.  v.  Ordway,  12  Cush.  (Mass.)  270. 

2  Russ.  on  Crimes,  605 ;  2  Greenl.  Ev.  §  84 ;  Kirland  v.  State,  43 
Ind.  146;  8.  c  2  Green  Cr.  Law  Rep.  706;  Johnson  v.  Thompson,  1 
Bald.  C.  Ct.  571. 

a  Reg.  v.  Britton,  8  C.  &  P.  660. 

4  Reg.  v.  Hanson,  2  C.  &  K.  912  and  notes. 

6  Com.  v.  Stratton,  114  Mass.  303. 


ASSAULT.  67 

oe,  as  by  locking  the  door  of  the  room  where  he  lies 
asleep,  without  the  use  of  any  force  or  fraud  to  place 
him  there,  though  illegal,  does  not  come  within  any 
definition  of  assault,  although  the  language  of  some 
of  the  old  text-writers  is  broad  enough  to  cover 
it.  Mr.  Justice  Buller 1  says  :  "  Every  imprisonment 
includes  a  battery,  and  every  battery  an  assault ;  " 
citing  Coke  upon  Littleton,  253,  where  it  is  merely 
said  that  imprisonment  is  a  "  corporall  dammage,  a 
restraint  upon  personal  liberty,  a  kind  of  captivity," 
—  obviously  no  authority  for  the  proposition  that  every 
imprisonment  includes  an  assault,  though  it  is  au- 
thority for  the  proposition  that  an  imprisonment  may 
be  a  cause  of  action.  It  is  probable  that  such  impris- 
onment only  as  follows  unlawful  arrest  was  in  the 
mind  of  that  great  judge  and  common  lawyer.2  And 
in  one  case  at  least  in  this  country8  the  court  has 
gone  very  near  to  that  extent.  But  it  would  not  be 
safe  to  say  that  such  is  the  law.  There  may  be  an 
imprisonment  by  words  without  an  assault.4 

§  59.  Putting  in  Fear.  —  Many  authorities  hold  that 
although  the  threatened  force  be  not  within  striking 
distance,  yet,  if  it  be  part  of  an  act  or  series  of  acts 
•frhich,  if  consummated,  will,  in  the  apprehension  of 
the  person  threatened,  result  in  the  immediate  appli- 
cation of  force  to  his  person,  this  will  amount  to  an 

i  N.  p.  22. 

2  See  note  to  Bridgeman's  edition  of  Buller,  p.  22.  In  Emmott  v. 
Lyne,  1  B.  &  P.  N.  R.  255,  the  proposition  is  said  to  be  absurd,  and 
the  fact  that  it  is  unsupported  by  the  authority  of  Coke  or  Little- 
ton pointed  out. 

»  Smith  v.  State,  7  Humph.  (Tenn.)  43. 

*  Bird  v.  Jones,  7  Q.  B.  742  ;  Johnson  v.  Tompkins,  1  Bald.  C  Ct 
571  ;  Pike  v.  Hanson,  9  N.  H.  491 ;  1  Russ.  on  Crimes,  607. 


68  CRIMINAL  LAW. 

assault ;  as  where  one  armed  with  a  weapon  rushes  upon 
another,  but  before  he  reaches  him  is  intercepted  and 
prevented  from  executing  his  purpose  of  striking ; 1  or 
rides  after  him,  upon  horseback,  and  compels  him  to 
seek  shelter  to  escape  a  battery ; 2  or  a  man  chases  a 
woman  through  a  piece  of  woods,  crying  "  stop," 
until  she  arrives  at  a  house,  when  he  turns  back,  and 
gives  up  the  chase.3  The  force  of  fear,  taking  effect, 
supplies  the  actual  violence.4 

Mere  words,  however  menacing,  it  seems  long  to 
have  been  universally  agreed,  do  not  amount  to  an 
assault.  Though  the  speaking  of  the  words  is  an  act, 
it  is  not  of  such  importance  as  to  constitute  an  attempt 
to  commit  violence.  It  is  not  "  violence  begun  to  be 
executed."6  But  words  accompanied  by  acts  which 
indicate  an  intent  to  commit  violence,  and  threaten 
application  of  force  to  the  assaulted  party,  unless  the 
assailant  be  interrupted,  constitute  an  assault.6 

§  60.  Menace,  but  no  Intent  to  commit  a  Battery. — 
It  has  been  recently  held  that  if  there  is  menace  of 
immediate  personal  injury  such  as  to  excite  apprehen- 
sion in  the  mind  of  a  reasonable  man,  although  the 
person  threatening  intended  not  to  injure,  as  where 
one  person,  within  shooting  distance,  points  an  un- 
loaded gun  at  another  knowing  that  it  is  not  loaded, 
it  is  an  assault,7  adopting  the  following  definition  of 

i  State  v.  Davis,  1  Ired.  (N.  C.)  125;  Stephen  v.  Myers,  4C.&P. 
349. 

2  Morton  v.  Shoppel,  3  C.  &  P.  373 ;  State  v.  Sims,  3  Strobh. 
(S.  C.)  137. 

8  State  v.  Neely,  74  N.  C.  425. 

*  Com.  v.  White,  110  Mass.  407  ;  Balkom  v.  State,  40  Ala.  671. 

6  1  Hawk.  P.  C.  c.  62,  §  1. 

«  People  v.  Yslas,  27  Cal.  630. 

'  Com.  v.  White,  110  Mass.  407. 


ASSAULT.  69 

Mr.  Bishop  : l  "  An  assault  is  any  unlawful  physical 
force,  partly  or  fully  put  in  motion,  creating  a  reason- 
able apprehension  of  immediate  physical  injury."  And 
this  seems  to  be  the  doctrine  of  the  Scotch  law.2 
But  no  well-considered  English  case  has  gone  to  this 
extent,  though  there  is  a  dictum  by  Mr.  Baron  Parke  3 
which  supports  the  doctrine,  while  other  and  later 
cases  are  to  the  contrary.4  Nor  has  any  other  Ameri- 
can case  been  found  which  goes  so  far.  On  the  con- 
trary, there  are  several  which  seem  to  imply  that  if 
the  gun  be  not  loaded,  it  may  be  shown  by  the  accused 
in  defence.6  A  man  who  menaces  another  with  cor- 
poral injury,  with  intent  to  excite  his  fears,  may  no 
doubt  be  guilty  of  an  indictable  offence  ;6  but  whether 
the  offence  constitutes  an  assault  must  be  considered 
an  open  question.  An  intent  to  commit  one  crime 
cannot  make  a  party  guilty  of  committing  another 
which  he  did  not  intend,  unless  the  unintended  one 
be  actually  committed.  Nor  does  it  follow,  because 
a  person  may  be  justified  in  availing  himself  of  force 
to  avoid  or  ward  off  apprehended  bodily  harm,  that 
bodily  harm  is  intended.  Not  every  supposed  assault 
is  an  actual  one,  nor  does  it  seem  logical  or  just  that 
the  misapprehension  of  one  can  fix  criminal  respon- 

1  2  Cr.  Law,  §  23. 

5  Morrison's  Case,  1  Brown,  394. 

8  Reg.  v.  St.  George,  9  C.  &  P.  483. 

*  Blake  v.  Barnard,  9  C.  &  P.  626 ;  Reg.  v.  James,  1  C.  &  K.  254. 

6  See,  in  addition  to  the  cases  very  fully  collected  by  Mr.  Bishop, 
2  Cr.  Law,  §  33,  n.  1,  p.  20;  Burton  v.  State  (Tex.),  6  Reptr.  471  ; 
Tarver  v.  State,  43  Ala.  353 ;  Richels  v.  State,  1  Sneed  (Tenn.),  606. 
See  also  Mr.  Green's  note  to  Com.  v.  White,  2  Green  C  L.  R.  269, 
in  which  the  doctrine  of  the  principal  case  is  denied,  and  the  casei 
upon  which  it  is  supposed  to  rest  carefully  examined. 

6  State  v.  Benedict,  11  Vt.  236. 


70  CRIMINAL  LAW. 

sibility  upon  another,  though  the  latter  cannot  be 
allowed  to  complain  that  he  has  suffered  the  conse- 
quences of  a  misapprehension  to  which  he  has  given 
rise.1 

§  61.  Consent  to  an  assault  is  not  to  be  presumed. 
But  if  there  be  actual  consent  to  the  use  of  the  force 
which  would  otherwise  constitute  an  assault,  this  will 
deprive  it  of  its  criminal  character  as  an  assault,  even 
though  the  act  consented  to  be  unlawful ;  as  where  a 
woman  consents  to  have  connection  with  a  man,2  or  to 
an  operation  for  the  purpose  of  procuring  an  abortion ; 8 
or  two  men  privately  spar  with  each  other ; 4  though 
if  they  publicly  engage  in  a  prize-fight,  it  is  said  each 
may  be  indicted  as  for  an  assault :  5  but  there  are  cases 
which  seem  irreconcilable  with  this  view  of  the  law.6 
Consent,  however,  obtained  by  fraud  or  false  pre- 
tences, or  threats  of  such  a  character  as  to  overpower 
the  will,  is  no  consent.7  And  the  consent  must  be 
positive.  A  mere  submission,  as  of  an  idiot,8  or  of  a 
child,9  or  of  a  person  asleep10  or  otherwise  unconscious, 

1  McKay  v.  State,  44  Tex.  43,  a  very  recent  case,  in  which  the 
point  is  elaborately  considered  and  the  definition  of  Mr.  Bishop  dis- 
approved.    8.  c.  1  Am.  Cr.  Rep.  46. 

2  People  v.  Bransby,  32  N.  Y.  625 ;  Reg.  v.  Meredith,  8  C.  &  P. 
689  ;  Smith  v.  State,  12  Ohio  St.  466. 

8  Com.  v.  Parker,  7  Met.  (Mass.)  263;  State  v.  Cooper,  2  Zab. 
(N.  J.)  52. 

*  Reg.  r.  Young,  10  Cox  C.  C.  371. 

6  Com.  v.  Colbert,  119  Mass.  350.  See  also  State  y.Lonon,  19  Ark. 
577. 

e  Reg.  v.  Meredith,  8  C.  &  P.  589 ;  Champer  v.  State,  14  Ohio  St. 
437  ;  Duncan  v.  Com.,  6  Dana  (Ky.),  295. 

1  Reg.  v.  Case,  4  Cox  C.  C.  226  ;  Reg.  v.  Saunders,  8  C.  &  P.  286 ; 
Reg.  v.  Hallett,  9  C.  &  P.  748 ;  Reg.  v.  Woodhurst,  12  Cox  C.  C.  443. 

8  Reg.  v.  Fletcher,  8  Cox  C.  C.  13. 

9  Reg.  v.  Lock,  12  Cox  C  C.  244  ;  Hays  v.  People,  1  Hill  (N.  Y.), 
351.  10  Reg.  v.  Mayers,  12  Cox  C.  C.  131. 


ASSAULT.  71 

or  unable  to  understand  what  is  going  on,  is  not  equiv- 
alent to  consent.1 

§  62.  Self-defence.  —  As  every  person  has  the  right 
to  protect  himself  from  injury,  he  may,  when  assaulted, 
use  against  his  assailant  such  reasonable  force  in  de- 
gree and  kind  as  may  be  necessary  and  appropriate  for 
his  protection.  But  if  he  go  beyond  that  limit,  he  be- 
comes in  his  turn  guilty  of  assault.2 

There  seems  to  be  no  necessity  for  retreating  or  en- 
deavoring to  escape  from  the  assailant,  before  resort- 
ing to  any  means  of  self-defence  short  of  those  which 
threaten  the  assailant's  life.  Nor  where  one  has  been 
repeatedly  assaulted,  and  has  reason  to  believe  that  he 
will  be  again,  is  he  bound  to  seek  the  protection  of  the 
authorities.  He  may  resist  the  attack,  and  if  it  comes, 
repel  force  with  force.3 

But  before  the  assaulted  party  will  have  the  right  to 
kill  his  assailant  he  must  endeavor  to  avoid  the  neces- 
sity, if  it  can  be  done  with  safety.  If,  however,  there 
be  reasonable  apprehension  of  danger  so  imminent  or 
of  such  a  character  that  retreat  or  delay  may  increase 
it,  then  the  assaulted  party  is  justified  in  entering 
upon  his  defence  at  once  and  anticipating  the  danger.4 

Such  force  may  also  be  used  in  defence  of  those* 
whom  it  is  one's  right  or  duty,  from  relationship  or 
otherwise,  to  protect,  and  indeed  in  defence  of  any 
one  unlawfully  assailed.6 

1  Ante,  §  56. 

2  Reg.  v.  Driseoll,  C.  &  M.  214 ;  Gallagher  v.  State,  3  Minn.  270 ; 
State  v.  Gibson,  10  Ired.  (N.  C.)  214 ;  Com.  v.  Ford,  5  Gray  (Mass.), 
475. 

8  Evers  v.  People,  6  N.  Y.  Sup.  Ct.  n.  a.  81 ;  Gallagher  p.  State, 
8  Minn.  270. 

*  Stato  r.  Bohan  (Kan),  C)  Reptr.  73.     See  also,  post,  Homicide. 
6  1  Bishop   Cr.  Law,  §  877. 


72  CRIMINAL  LAW. 

§  63.  Defence  of  Property.  —  So  force  may  be  used 
in  defence  of  one's  house  or  his  property.  A  man's 
house  is  his  castle,  for  defence  and  security  of  him- 
self and  his  family.  And  if  it  is  attacked,  even 
though  the  object  of  the  attack  be  to  assault  the 
owner,  he  may,  without  retreating,  meet  the  assail- 
ant at  the  threshold,  and  prevent  his  access  to 
the  house,  if  need  be,  even  by  taking  his  life.1  But 
here,  as  in  other  cases  of  self-defence,  if  the  intruder 
be  driven  off,  following  and  beating  him  while  on 
his  retreat  becomes  in  its  turn  an  assault.2  And 
in  defence  of  property  the  resistance  cannot  extend 
to  taking  the  life  of  the  intruder  where  there  is  a 
mere  forcible  trespass,  but  only  where  it  is  necessary 
to  prevent  the  felonious  taking  or  destruction  of  the 
property  .3 

But  though  a  man  will  be  justified  in  such  extreme 
measures  in  defence  of  his  property,  this  can  only  be 
to  prevent  it  from  being  taken  away  from  him.  He 
cannot  resort  to  any  force  which  would  amount  to  an 
assault  or  breach  of  the  peace  to  recapture  his  stolen 
property,4  as  the  preservation  of  the  public  peace  is  of 
greater  importance  than  the  status  of  any  man's  pri- 
vate property. 

§  64.  Accidental  Injury.  —  If  a  person  doing  a  law- 
ful act  in  a  proper  manner,  without  intent  to  harm 
another,  sets  in  motion  a  force  which  by  accident  be- 
comes hurtful,  this  is  no  assault.     Thus,  where  one 

>  State  v.  Patterson,  45  Vt.  308;  Bohannon  v.  Com.,  8  Bush  (Ky.), 
481  ;  Pond  v.  People,  8  Mich.  150;  State  v.  Martin,  30  Wis.  216. 

2  State  v.  Conolly,  3  Oreg.  69. 

8  Carroll  v.  State,  23  Ala.  28 ;  1  East  P.  C.  402 ;  1  Bishop  Cr. 
Law,  §  876 ;  State  v.  Patterson,  45  Vt.  308. 

*  Hendrix  v.  State,  50  Ala.  148  ;  3  Bl.  Com.  4  ;  post,  §  118. 


ASSAULT.    BARRATRY.  73 

throws  an  object  in  a  proper  direction,  and  by  striking 
some  other  object  it  is  made  to  glance,  or  is  driven  by 
the  wind  out  of  its  course,  so  that  it  strikes  another, 
or  if,  without  being  turned  from  its  course,  it  hits  a 
person  not  known  to  be  in  the  vicinity  when  the  ob- 
ject is  thrown,  the  act  is  in  no  sense  criminal.1 


-r- 


BARRATRY. 


§  65.  Barratry  is  a  maritime  offence,  and  consists  in 
the  wilful  misconduct  of  the  master  or  mariners,  for 
some  unlawful  purpose,  in  violation  of  their  duty  to 
the  owners  of  the  vessel. 

Thus,  stealing  from  the  cargo,2  wilful  deviation  in 
fraud  of  the  owner,3  or  delay  for  private  gain,4  or  any 
unlawful  purpose,6  have  severally  been  held  to  consti- 
tute barratry.  So  has  the  unlawful  resistance  to  the 
search  of  a  belligerent.6  And  negligence  may  be  so 
gross  as  to  amount  to  fraud,  just  as  at  common  law  it 
may  be  so  gross  as  to  amount  to  criminality.7  It  is 
not  necessary  that  there  should  be  fraud  in  the  sense 
of  an  intention  on  the  part  of  the  accused  to  promote 
his  own  benefit,  at  the  expense  of  the  owners,  but  any 
wilful  act  of  known  illegality,  every  gross  malversa- 
tion or  criminal  negligence  in  the  discharge  of  duty, 
whereby  the  owner  of  the  vessel  is  damnified,  comes 
within  the  legal  definition  of  barratry.8 

1  Rex  v.  Gill,  1  Str.  190  ;  1  Russ.  on  Crimes,  607. 

2  Stone  v.  National  Ins.  Co.,  19  Pick.  (Mass.)  34. 
8  Vallcjo  v.  Wheeler,  Cowp.  143. 

*  Ross  v.  Hunter,  4  T.  R.  33. 

6  Roscow  v.  Corson,  8  Taunt,  684. 

8  Brown  v.  Union  Ins.  Co.,  3  Day  (Conn  ;,  1. 

7  Patapsco  Ins.  Co.  v.  Coullen,  3  Pet.  (U.  S.)  222. 

8  Lawton  v.  Sun  Mut.  Ins.  Co.,  2  Cush.  (Mass.)  500. 


74  CRIMINAL  LAW. 

BARRETRT.       CHAMPERTY.       MAINTENANCE. 

§  66.  Barretry,  Champerty,  and  Maintenance  are 
kindred  offences.  The  encouragement  of  strife  was 
regarded  by  the  common  law  as  a  matter  of  public  con- 
cern, and  it  interposed  to  punish  and  prevent  it.  There 
were  two  special  forms  which  this  encouragement  as- 
sumed :  One,  where  a  stranger  in  interest  takes  part 
in  the  promotion  of  a  controversy  under  an  agreement 
that  he  shall  have  part  of  the  proceeds,  is  called  cham- 
perty, because  it  is  an  agreement  campum  partire,  — 
to  divide  the  spoils  ;  the  other,  where  one  officiously  and 
without  just  cause  intermeddles  with  and  promotes  the 
prosecution  or  defence  of  a  suit  in  which  he  has  no 
interest,  is  called  maintenance. 

Barretry  is  habitual  champerty  or  maintenance,  and 
is  committed  where  one  has  become  so  accustomed  to 
intermeddle  in  strifes  and  controversies  in  and  out  of 
court,  that  he  may  be  said  to  be  a  common  mover, 
exciter,  or  maintainer  of  suits  and  quarrels  ;  as  one 
becomes  a  common  scold  by  the  too  frequent  and  ha- 
bitually abusive  use  of  the  tongue,  or  a  common  seller 
of  liquor,  who  habitually  sells  it  in  violation  of  law. 
A  single  act  is  sufficient  upon  which  to  maintain  an 
indictment  either  for  champerty  or  maintenance  ;  but 
a  series  of  acts,  not  less  than  three,  are  necessary  to 
constitute  the  habit,  which  is  the  gist  of  the  crime  of 
barretry.1 

The  offence  of  barretry  may  be  committed  by  a  jus- 
tice of  the  peace  who  stirs  up  prosecutions  to  be  had 

i  4  Bl.  Cora.  134,  135;  Com.  v.  Davis,  11  Pick.  (Mass.")  432;  Com. 
v.  McCullock,  15  Mass.  227;  Com.  v.  Tubbs,  1  Cush.  (Mass.)  2; 
Case  of  Barretry,  8  Coke,  36,  which  contains  much  of  the  early 
learning  on  the  subject. 


BARRETRY.  75 

before  himself  for  the  sake  of  fees;1  and.  it  seems, 
by  one  who  unnecessarily,  and  for  the  purpose  of 
opposing  his  adversary,  brings  numerous  ungrounded 
suits  in  his  own  right.2 

The  intervention,  in  order  to  constitute  the  crime  of 
maintenance,  must  be  without  interest.  If  one  may 
be  prejudiced  by  the  result  of  the  suit,  or  has  a  con- 
tingent interest  therein,  as  if  a  vendee  has  warranted 
title  to  the  vendor,  he  has  an  interest  which  justifies 
the  intervention.3 

The  intervention  must  also  be  officious  and  without 
just  cause.  If,  therefore,  the  relationship  of  the  par- 
ties or  their  circumstances  be  such  as  to  warrant  the 
belief  that  the  intervention  is  of  a  friendly  kind,  in 
the  interest  of  justice,  and  to  prevent  oppression,  it 
will  not  now,  whatever  may  have  been  the  extravagant 
notions  of  the  old  lawyers 4  adopted  under  the  pres- 
sure of  the  opinion  that  such  intervention  tended  to 
the  formation  of  combinations  calculated  to  obstruct 
if  not  overawe  the  courts,  be  held  to  be  criminal.5 
Still,  an  agreement  by  an  attorney  to  carry  on  a  law- 
suit, making  no  disbursements,  and  to  look  to  a  share 
of  the  proceeds  for  the  compensation  of  his  services, 
is  held  to  be  clearly  champertous  in  those  States 
where  the  common  law  of  champerty  has  been 
adopted.6     Other  States,  however,  deny  that  the  law 

i  State  v.  Chitty,  1  Bail.  (S.  C.)  379. 

2  Com.  v.  McCulloch,  15  Mass.  227  ;  1  Hawk.  P.  C.  c.  81,  §  3. 

8  Master  v.  Miller,  4  T.  R.  320;  Goodspeed  v.  Fuller,  46  Me.  141; 
Williamson  v.  Sammons,  84  Ala.  691. 

*  1  Hawk.  P.  C.  c.  83,  §  4  et  seq. 

8  Lathrop  v.  Amherst  Bank,  9  Met.  (Mass.)  489. 

6  Lathrop  v.  Amherst  Bank,  9  Met.  (Mass.)  489.  See  also  Elliot 
v.  McClelland,  17  Ala.  206  ;  Martin  v.  Clark,  8  R.  I.  389. 


76  CRIMINAL  LAW. 

of  maintenance  and  champerty  was  at  all  applicable  to 
this  country,  and  refuse  to  recognize  it  as  in  force.1 

In  point  of  fact,  the  tendency  is  to  disregard  the 
common  law,  except  so  far  as  it  may  have  been 
adopted  by  statute;2  and  it  may  be  doubted  if  any 
indictme  nt  would  now  be  maintained  for  champerty 
or  maintenance,  not  coming  strictly  within  the  limits 
of  some  precedent.  Indeed,  Mr.  Green3  asserts  that 
no  such  indictment  can  be  found  in  any  of  the  re- 
ports of  the  present  day,  and  expresses  the  opinion, 
which  seems  to  be  well  founded,  that  probably  nothing 
would  now  be  held  indictable  as  maintenance  unless  it 
amounted  to  a  criminal  conspiracy  to  obstruct  or  per- 
vert the  course  of  justice. 


See  Assault. 
See  Buggery. 


BATTERY. 
BESTIALITY. 

BIGAMY. 


§  67.  Bigamy,  otherwise  called  polygamy,  or  the  of- 
fence of  having  a  plurality  of  wives  or  husbands  at  the 
same  time,  like  adultery,  was  an  offence  of  ecclesiastical 
cognizance,  but  ultimately  became  a  statutory  offence,4 

1  Danforth  v.  Streeter,  28  Vt.  490 ;  Bayard  v.  McLean,  3  Har. 
(Del.)  139;  Wright  v.  Meek,  3  Iowa,  472;  Thurley  v.  Riggs,  11 
Humph.  (Tenn.)  53  ;  Key  v.  Vattier,  1  Ohio,  132  ;  Newkirk  v.  Cone, 
18  111.  440;  Stanton  v.  Sedgwick,  14  N.  Y.  289;  Bentinck  v.  Frank- 
lin, 38  Tex.  458  ;  Schomp  v.  Schenck  (N.  J.),  7  Reptr.  22  ;  Richard- 
son v.  Rowland,  40  Conn.  665.  See  also  note  to  the  last-cited  case, 
2  Green  Cr.  Law  Rep.  495,  for  some  interesting  details  of  the  state  of 
society  out  of  which  grew  the  law  of  maintenance  and  other  analo- 
gous crimes. 

2  See  note  to  Richardson  v.  Rowland,  14  Am.  L.  Reg.  n.  8.  78. 
8  Note  to  Richardson  v.  Rowland,  ubi  supra. 

*  1  James  I.  c.  11 ;  4  Bl.  Com.  164. 


BIGAMY.  77 

the  marrying  another  by  a  person  already  married  and 
having  a  husband  or  wife  living  being  made  a  felony. 
This  statute  was  adopted  by  Maryland  as  one  which 
"  by  experience  had  been  found  applicable  to  their 
local  and  other  circumstances,"  and  is  there  held  to  this 
day,  except  as  to  the  punishment,  to  be  a  part  of  the 
common  law.  And  by  the  law  of  Maryland  the  crime 
is  a  felony,  as  doubtless  it  is  in  other  States  where  pun- 
ishment in  the  State's  prison  is  or  may  be  the  penalty.1 
It  is  substantially  the  law  in  most  if  not  all  the  States 
of  the  Union.  It  is  only  the  second  marriage  which 
is  criminal ;  and,  therefore,  if  the  first  marriage  be  in 
one  jurisdiction  and  the  second  in  another  jurisdiction, 
the  crime  is  only  committed,  and  of  course  only  cogniz- 
able, by  the  tribunals  of  the  latter.2  And  equally,  of 
course,  if  the  first  marriage  is  invalid,  the  second  is  no 
offence  anywhere,  —  in  fact,  there  is  no  second  mar- 
riage.3 There  is  but  one  lawful  marriage,  and  if  the 
first  be  valid  the  second  is  void  ;  nor  is  it  material  that 
the  second  would  be  void  on  other  grounds.  The 
offence  consists  in  the  entering  into  a  void  marriage 
while  a  prior  valid  marriage  relation  exists.4 

A  divorce  may,  and  unless  restricted  in  its  terms 
usually  does,  annul  the  former  marriage,  so  as  to  make 

1  Ante,  §  26. 

2  1  Hawk.  P.  C.  bk.  1,  c.  43 ;  Putnam  v.  Putnam,  8  Pick.  433 ; 
People  v.  Mosher,  2  Parker  (N.  Y.)  C.  R.  195;  Com.  v.  Lane,  113 
Mass.  458. 

8  State  v.  Barefoot,  2  Rich.  (S.  C.)  209;  Shafher  v.  State,  20 
Ohio,  1  ;  People  v.  Slack,  15  Mich.  193  ;  McReynolds  v.  State,  5  Cold. 
(Tenn.)  18. 

4  People  v.  Brown,  34  Mich.  339;  Reg.  v.  Brown,  1  C.  &  K.  144  ; 
Reg.  v.  Allen,  L.  R.  1  C.  C.  367 ;  Hayes  v.  People,  25  N.  Y.  390 ; 
Robinson  v.  Commonwealth,  0  Bush  fKy.),  309;  Carmichael  v.  State, 
12  Ohio  St.  553. 


78  CRIMINAL  LAW. 

the  second  one  valid.  In  some  States,  however,  the 
guilty  party  in  a  divorce  for  adultery  on  his  part  may 
be  guilty  of  polygamy  by  marrying  without  leave  of 
court  while  his  divorced  wife  is  living.1  But  after  a 
divorce  in  one  State,  a  marriage  in  another  valid  by 
the  laws  of  that  State,  followed  by  a  return  to  the 
State  where  the  divorce  was  granted,  and  a  cohabita- 
tion there  with  the  second  wife,  will  not  be  held  polyg- 
amous, unless  the  second  wife  be  an  inhabitant  of  the 
State  granting  the  divorce,  and  the  parties  went  to  an- 
other State  to  be  married  in  order  to  evade  the  law.2  So 
if  the  party  goes  to  another  State  merely  for  the  purpose 
of  obtaining  a  divorce,  and  obtains  it  by  fraud,  it  will 
be  of  no  avail  to  him  on  his  return  to  the  State  he  left, 
and  marrying  again  there.3  And  the  crime  may  be 
committed  although  the  defendant  in  good  faith  be- 
lieved his  former  partner  was  dead  or  divorced.4 
Whether  the  formerly  unmarried  party  to  a  polygamous 
marriage  is  also  guilty,  if  he  marries  with  knowledge 
of  the  other  party's  disability,  of  any  offence,  and  what, 
is  an  open  question,  and  may  be  solved  differently  in 
different  States,  according  to  the  degree  of  the  prin- 
cipal offence,  whether  felony  or  misdemeanor,  or  by 
special  provisions  of  the  statute.6 

1  Com.  v.  Putnam,  1  Pick.  (Mass.)  136;  Baker  v.  People,  2  Hill 
(N.  Y.),  325. 

2  Com.  v.  Lane,  113  Mass.  458. 

8  Thompson  v.  State,  28  Ala.  12. 

*  Com.  v.  Marsh,  7  Met.  (Mass.)  472;  State  v.  Goodman,  65  Me. 
30  ;  ante,  §  5.     But  see  contra,  Squire  v.  State,  46  Ind.  459. 
5  See  Bishop  Cr.  Proc.  §  594 ;  Boggus  v.  State,  34  Ga.  275. 


BLASPHEMY. 


BLASPHEMY. 


§  68.  Blasphemy  is,  literally,  evil-speaking.  But  only 
that  kind  of  evil-speaking  which  injuriously  affects  the 
public  is  taken  notice  of  by  the  common  law ;  and  un 
der  this  particular  head  only  the  evil-speaking  of  sacred 
things.  The  definitions  of  blasphemy  differ,  according 
to  the  different  views  entertained  by  different  ages  and 
countries,  as  to  what  things  are  so  sacred  as  to  require, 
in  the  interest  of  public  order,  their  protection  against 
assault.  Thus,  in  Spain  it  is  held  to  be  blasphemous 
to  speak  evil  of  the  saints  ; 1  and  in  Woolston's  Case 
it  was  held  blasphemous  at  common  law  to  write 
against  Christianity  in  general,  while  it  was  intimated 
that  learned  men  might  dispute  about  particular  con- 
troverted points.  Though  the  common  law  is  under- 
stood to  prevail  in  this  country  relative  to  this  crime, 
except  so  far  as  it  has  been  abrogated  by  statute,  yet 
it  cannot  be  doubted  that  its  application  would,  at  the 
present  day,  be  greatly  restricted.  No  such  discussion 
would  now  be  regarded  as  blasphemous,  unless  exe- 
cuted in  such  a  manner  as  to  betray  a  malicious  pur- 
pose to  calumniate  and  vilify,  and  to  such  an  extent 
as  to  become  an  injury  to  public  morals.  Good  morals 
being  one  of  the  strong  foundations  of  social  order, 
must  be  encouraged  and  protected.  Whatever,  there- 
fore, tends  essentially  to  sap  such  foundation  is  pun- 
ishable, upon  the  same  ground  as  is  the  publication  of 
obscene  writing  or  pictures. 

No  category  of  the  sacred  things  with   reference  to 
which  blasphemy  may  be  committed  has  been  given  in 

1  Bouv.  Diet.,  Blasphemy. 

2  2  Stra.  834. 


80  CRIMINAL  LAW. 

any  description  or  definition  of  the  offence  by  the 
courts  or  text-writers.  It  has  been  held  to  be  blas- 
phemous to  deny  the  existence  of  God,  with  the  intent  to 
calumniate  and  disparage  ; x  so,  to  speak  of  the  Saviour 
as  a  "  bastard,"  with  like  intent,2  or  as  an  impostor 
and  murderer ; 3  so,  with  like  intent,  to  speak  of  the 
Holy  Scriptures  as  "a  fable,"  and  as  containing 
"  many  lies,"  4  or  otherwise  maliciously  to  revile  them.6 
Christianity  is  a  part  of  the  common  law  of  this  coun- 
try, and  its  principles  are  so  interwoven  with  the 
structure  of  modern  society,  that  whatever  strikes  at 
its  root  tends  manifestly  to  the  dissolution  of  civil 
government.  "  Blasphemy,"  says  Chancellor  Kent,6 
"  according  to  the  most  precise  definitions,  consists  in 
maliciously  reviling  God  or  religion,"  —  as  satisfactory 
a  definition,  perhaps,  as  can  be  given,  taking  religion 
to  mean  that  body  of  doctrine  and  belief  commonly 
accepted  as  Christianity. 

Whether  the  words  are  spoken  or  written  is  imma- 
terial. They  must,  however,  if  spoken,  be  heard  by 
somebody,  and  if  written,  published.7 

Many  of  the  States  have  enacted  statutes  prescribing 
the  punishment  which  shall  be  imposed  in  certain  cases 
of  blasphemy ;  but  these  statutes  are  not  regarded  as 
changing   the  common  law,  except    so   far   as  their 

i  Com.  v.  Kneeland,  20  Pick.  (Mass.)  206. 

2  State  v.  Chandler,  2  Harr.  (Del.)  553;  People  v.  Ruggles,  8 
Johns.  (N.  Y.)  290. 

3  Rex  v.  Washington,  1  B.  &  C.  26. 

*  Updegraph  v.  Com.,  11  S.  &R.  (Pa.)  394. 

5  Rex  v.  Hetherington,  5  Jur.  Q.  B.  629. 

6  People  v.  Ruggles,  ubi  supra. 

i  People  v.  Porter,  2  Parker  (N.  Y.)  C.  R.  14 ;  State  v.  Powell, 
70  N.  C.  67. 


«n- 


BLASPHEMT.    BRIBERY.  81 

special  terms  provide.  What  was  blasphemy  at  common 
iaw  is  still  blasphemy,  subject  to  the  modifications  of 
the  statute.1 

Prufanitij  is  an  offence  analogous  to  blasphemy, 
which  will  be  further  treated  under  the  head  of  Nui- 
sance, of  which  both  offences  are  special  forms.2 

BRIBERY. 

§  GO.  Bribery  is  a  misdemeanor  at  common  law,  ex-  s 
cept  the  bribing  of  a  judge,3  and  has  generally  been 
defined  as  the  offering  or  receiving  any  undue  reward 
to  or  by  any  person  whose  ordinary  profession  or  busi- 
ness relates  to  the  administration  of  public  justice,  in 
order  to  influence  his  behavior  in  office,  and  induce  him 
to  act  contrary  to  the  known  rules  of  honesty  and 
integrity.4  But  in  more  modern  times  the  word  has  re- 
ceived a  much  broader  interpretation,  and  is  now  held  to 
mean  the  corruptly  offering,  soliciting,  or  receiving  of  ' 
any  undue  reward  as  a  consideration  for  the  discharge 
of  any  public  duty.  Strictly  speaking,  an  offer  to  give 
or  receive  a  bribe  is  only  an  attempt,5  and  the  receipt 
of  a  bribe  is  the  consummated  offence.  But  as  long 
ago  as  1678  a  standing  order  of  the  House  of  Com- 
mons made  it.  bribery  as  well  to  offer  as  to  receive, 
and  so  at  the  present  day  either  the  offering  or  receiv- 
ing is  held  to  constitute  the  offence. 

1  1  Bishop  Cr.  Law,  §  80,  and  cases  there  cited. 

2  The  question  of  the  unconstitutionality  of  such  laws,  as  restric- 
tive of  the  liberty  of  speech  and  of  the  press,  is  elaborately  discussed, 
and  decided  in  the  negative,  by  Shaw,  C.  J.,  in  Com.  v.  Eneeland, 
which,  with  the  cases  in  New  York  and  Pennsylvania  before  cited, 
are  leading  cases  upon  the  subject. 

3  1  Hawk.  P.  C.  bk.  1,  c.  07,  §  6. 

«  Coke,  3d  Inst.  145  ;  3  Greenl.  Ev.  71. 
6  Walsh  v.  People,  Go  111.  58. 

0 


82  CRIMINAL  LAW. 

By  undue  reward  is  meant  any  pecuniary  advan- 
tage, direct  or  indirect,  beyond  that  naturally  at- 
tached to  or  growing  out  of  the  discharge  of  the 
duty.  Tims,  voting  is  a  public  duty,  and  though 
no  compensation  is  allowed,  yet  by  the  exercise  of 
the  right  one  may  promote  the  public  welfare,  and 
thus  indirectly  his  own.  But  if  he  sells  or  prom- 
ises to  sell  his  vote  in  consideration  of  any  other  pri- 
vate reward,  it  is  an  abuse  of  the  trust,  and  an 
indictable  offence.  And  the  buying  or  promising  to 
buy  the  vote  is  equally  an  offence,  though  the  person 
selling  refuses  to  perform  the  contract,1  or,  if  a  leg- 
islator, has  no  jurisdiction  in  the  premises,2  or  in  point 
of  fact  has  no  right  to  vote.3  So  where  a  candidate  for 
public  office  offered,  in  case  of  his  election,  to  serve 
for  less  than  the  salary  provided  by  law  for  the  office, 
whereby  the  taxes  would  be  diminished,  this  was  held 
to  be  within  the  spirit  of  the  law  against  bribery.4 
So  conduct  inducing  or  tending  to  induce  corrupt  offi- 
cial action,  as  the  offer  of  money  to  one  having  the 
power  of  appointment  to  office,  to  influence  his  action 
thereon ; 5  or  to  a  sheriff  or  his  subordinate  having 
the  custody  of  prisoners,  to  induce  him  to  connive  at 
their  escape ; 6  or  to  a  customs  officer,  to  induce  him 
to  forbear  making  a  seizure  of  goods  forfeited  by  vio- 

1  Sulston  v.  Norton,  3  Burr.  1235 ;  Henslow  v.  Fawcett,  3  Ad.  & 
El.  51. 

2  State  v.  Ellis,  4  Vroom  (N.  J.),  102. 
'  Combe  v.  Pitt,  3  Burr.  1586. 

4  State  v.  Purdy,  36  Wis.  213.  But  see  Dishon  v.  Smith,  10  Iowa, 
212,  where  giving  a  note  to  the  county  as  an  inducement  to  the  people 
to  vote  for  the  removal  of  the  county  seat,  was  held  not  to  be 
bribery. 

5  Rex  v.  Vaughan,  4  Burr.  2494;  Rex  v.  Pollman,  2  Camp.  229. 

6  Rex  v.  Beale,  1  East,  183. 


BRIBERY.     BUGGERY.  83 

lation  of  the  revenue  laws.1  The  theory  of  our  gov- 
ernment is  that  all  public  stations  are  trusts,  and  that 
those  clothed  with  them  are  to  be  actuated  in  the  dis- 
charge of  their  duties  solely  by  considerations  of  right, 
justice,  and  the  public  good  ;  and  any  departure  from 
the  line  of  rectitude  in  this  behalf,  and  any  conduct 
tending  to  induce  such  departure,  is  a  public  wrong.2 
Under  the  statute3  which  prohibits  the  payment  of 
money  to  a  voter  to  induce  him  to  vote,  it  has  been 
held  to  be  no  offence  to  pay  the  travelling  expenses 
of  the  voter  to  and  from  the  polling  places,  if  paid 
•without  any  consideration  that  he  should  vote  in  a  par- 
ticular way.4 

BUGGERY. 

§  70.  Buggery,  otherwise  called  sodomy,  bestiality, 
and  the  crime  against  nature,  is  the  unnatural  copula- 
tion of  two  persons  with  each  other,  or  of  a  human 
being  with  a  beast.  This  crime  was  said  to  have  been 
introduced  into  England  by  the  Lombards,  and  hence 
its  name,  from  the  Italian  bitgarone.5  It  may  be 
committed  by  a  man  with  a  man,  by  a  man  with  a 
beast,  or  by  a  woman  with  a  beast,  or  by  a  man  with 
a  woman,  —  his  wife,  in  which  case,  if  she  consent, 
she  is  an  accomplice.6  But  the  act,  if  between  human 
beings,  must  be  per  anum,  and  the  penetration  of  a 

1  Rex  v.  Everett,  3  B.  &  C.  114.  See  also  Caton  v.  Stewart  (N.  C), 
6  L.  &  Eq.  Reptr.  108. 

2  Trist  v.  Childs,  21  Wall.  (U.  S.)  441. 
8  17  &  18  Vict.  c.  102. 

*  Cooper  v.  Slade,  36  Eng.  L.  &  Eq.  152. 

»  Coke,  3d  Inst.  58. 

6  Reg.  v.  Jellyman,  8  C.  &  P.  604. 


84  CRIMINAL  LAW. 

child's  mouth  does  not  constitute  the  offence.1  If  both 
parties  consent,  both  are  guilty,  unless  one  be  under 
the  age  of  discretion.2  Under  the  old  common  law, 
both  penetration  and  emission  were  necessary  to  con- 
stitute the  offence ; 3  but  since  the  statute  of  9  Geo. 
IV.  c.  31,  §  18,  penetration  only  is  necessary.4  Be- 
fore this  statute,  copulation  with  a  fowl  was  not  an 
offence,  as  a  fowl  is  not  a  "  beast ;  "  but  this  statute 
covers  copulation  with  any  "  animal."  It  was  always 
regarded  as  a  very  heinous  offence,  and  was  early  de- 
nounced as  "  the  detestable  and  abominable  crime 
amongst  Christians  not  to  be  named,"  and  was  pun- 
ishable with  death.  But  though  it  is  still  a  felony  in 
most  of  the  States,  it  is,  we  believe,  nowhere  capi- 
tally punished.  In  some  of  the  States,  where  there  is 
no  crime  not  defined  in  the  code,  it  seems  to  have  been 
purposely  dropped  from  the  category  of  crimes.5  The 
origin  of  the  term  "  sodomy "  may  be  found  in  the 
nineteenth  chapter  of  Genesis.  The  practice  was  first 
denounced  by  the  Levitical  law  as  a  heathen  practice, 
and  amongst  non-Christian  nations,  at  the  present  day, 
it  is  not  generally  regarded  as  criminal. 

BURGLARY. 

§  71.  Burglary  is  the  breaking  and  entering  of  an- 


the  night-time,  with  intent  to 
6    The  breaking  may  be  actual 


other's  dwelling-house  in 
commit  a  felony  therein.6 
or  constructive. 

i  Rex  v.  Jacobs,  R.  &  R.  C.  C.  331. 
2  Reg.  o.  Allen,  1  Den.  C.  C.  364 ;  Coke,  3d  Inst.  58. 
«?  «  Rex  v.  Duffin,  1  R.  &  R.  C.  C.  365. 

«  Rex  v.  Reekspear,  1  Moody  C.  C.  342. 

6  Farwell  v.  State,  32  Tex.  378.    See  also  Estes  v.  Cartin,  10  Iowa, 
400  8  Hawk.  P.  C.  bk.  1.  c.  38,  §  1. 


■ 


.^JT  BURGLARY.  85 

S  72.  Actual  breaking  takes  place  when  any  apart- 
ment  of  the  house  is  broken  into  by  force ;  as  by  lift- 
ing a  latch,  or  sliding  a  bolt,  or  turning  a  lock  or  the  ^^ 
fastening  of  a  window,  or  breaking  or  removing  a  pane 
of  glass,  or  lifting  up  or  pulling  down  an  unfastened 
window-sash  or  trap-door,  or  pulling  open  a  sash  which 
swings  on  hinges,  or  the  cutting  out  of  a  netting  of 
twine  which  is  fastened  over  an  open  window,  or  open- 
ing the  outside  shutters.  The  offence  consists  in  vio- 
lating the  common  security  of  the  dwelling-house. 
It  is  immaterial  whether  the  doors  and  windows  are 
fastened  or  unfastened,  provided  the  house  is  secured 
in  the  ordinary  way,  and  is  not  left  so  carelessly  open 
as  to  invite  an  entry  ; 1  and  leaving  the  door  or  win- 
dow ajar,  or  unclosed  even  to  a  slight  degree,  and  not 
so  far  as  to  admit  the  body,  would  constitute  such  an 
invitation,  so  that  opening  them  further  would  not 
amount  to  a  burglarious  breaking.2  It  is  also  held 
that  entering  a  house  by  way  of  the  chimney,  or  even 
getting  into  the  chimney,  is  a  breaking,  though  no 
actual  force  is  used,  since  it  is  not  usual  to  secure  such 
an  opening,  and  the  house  is  as  much  closed  as  is  rea- 
sonable or  requisite.3 

§  73.  Constructive  Breaking.  —  A  constructive  break- 
ing is  where  fraud  or  threats  are  substituted  for 
force,  whereby  an  entry  is  effected  ;  as  where  entrance 
is   procured   by  conspiring  with   persons   within  the 

1  Com.  v.  Stephenson,  8  Pick.  354  ;  Rex  v.  Haines,  1  R.  &  R.  C.  C. 
450;  Rex  v.  Russell,  1  Moody  C  C.  377;  8.  c.  2  Lead.  Cr.  Cas.  48, 
and  note. 

Rex  v.  Smith,  1  Moody  C.  C.  178 ;  Rex  v.  Hyams,  7  C.  &  P.  441 ; 
Com.  v.  Strupney,  105  Mass.  588. 

»  Hex  v.  Brice,  R.  &  R.  C.  C.  450;  State  o.  Willis,  7  Jones  (N.  C.) 
Law,  190 j  Walker  v.  State,  52  Ala.  376. 


86  CRIMINAL  LAW. 

house ;  *  or  by  pretence  of  hiring  lodgings  or  obtain- 
ing refreshment ; 2  or  under  color  of  legal  process 
fraudulently  obtained ; 3  or  by  enticing  the  owner 
out  of  his  house,  if  the  entry  be  made  immediately, 
and  before  the  owner's  family  have  time  to  shut  the 
door.4 

§  74.  Breaking.  Connivance.  Consent.  —  But  if  the 
owner,  being  apprised  by  his  servant  of  a  plan  to  rob 
the  house,  gives  his  servant  the  keys,  with  instructions 
to  carry  out  the  plan,  and  the  servant  and  the  prisoner 
go  together  into  the  house,  the  servant  unlocking  the 
door,  this  is  said  to  be  no  burglary,  as  the  act  is  by  the 
owner's  consent ; 5  though  if  the  owner,  being  so  ap- 
prised, merely  lies  in  wait  for  the  purpose  of  detecting 
the  perpetrators,  this  is  no  consent,  and  they  will  be 
guilty  of  the  offence.6 

§  75.  Breaking.  Dwelling-house. — The  breaking  must 
be  of  some  part  of  that  actual  enclosure  which  consti- 
tutes the  dwelling-house.  The  mere  passage  across 
that  imaginary  line  with  which  the  law  surrounds 
every  man's  realty,  and  which  constitutes  a  sufficient 
breaking  upon  which  to  found  the  action  of  trespass 
quare  clausum  /regit,  is  not  sufficient.     But  the  break- 

i  2  East  P.  C.  486. 

2  2  East  P.  C.  486  ;  State  v.  Mordecai,  68  N.  C.  207. 
»  Rex  v.  Farr,  J.  Kelyng,  43 ;  2  East  P.  C  486  ;  State  v.  Johnson, 
Ph.  (N.  C)  186. 

4  State  v.  Henry,  9  Ired.  (N.  C.)  403.  But  see  opinion  of  Ruffin, 
C.  J.,  who  dissented,  upon  the  point  as  to  the  necessity  of  immediate 
entry.     See  also  Breese  v.  State,  12  Ohio,  n.  s.  146. 

5  Allen  v.  State,  40  Ala.  334.  See  also  Reg.  v.  Hancock,  C.  C.  R. 
6  Reptr.  351. 

8  Thompson  v.  State,  18  Ind.  386  ;  Rex  v.  Bigley,  1  C.  &  D.  (Irish) 
C.  C.  202.  Compare  also  Alexander  v.  State.  12  Tex.  640,  with  Reg. 
v.  Hancock,  ubi  supra. 


BURGLARY.  87 

ing  of  Ilif  i inter  enclosure  is  not  essential,  if,  after  the 
entry  through  this,  the  house  or  some  parts  of  it  he 
broken.  Thus,  the  forcing  of  the  fastened  outer 
shutters  of  a  window  would  be  a  breaking;  if  these 
happened  to  be  open,  then  the  forcing  of  the  window 
would  be  a  breaking;  and  if  both  were  open,  and 
an  entry  be  effected  through  them,  then  a  breaking 
open  of  a  door,  —  part  of  the  house, —  would  consti- 
tute the  offence  ; '  though  not  the  breaking  open  a 
cheat,  cupboard,  clothes-press,  or  other  movable,  not 
part  of  the  house.3  So  if  one  guest  at  an  inn  break 
and  enter  the  room  of  another  guest,  it  is  burglary.3 
It  was  formerly  doubted  whether  an  innkeeper  would 
be  guilty  of  burglary  by  breaking  and  entering  the 
room  of  his  guest,  the  doubt  resting  upon  the  ques- 
tion whether  the  room  was  the  guest's  for  the  time 
being.4  Under  statutes  making  a  special  or  construc- 
tive ownership  sufficient,  the  doubt  can  hardly  exist.5 
§  TO.  Breaking  Out.  —  It  was  early  enacted,6  to  solve 
the  doubts  which  had  theretofore  prevailed,  that  the 
entry  by  day  or  by  night  into  a  dwelling-house  with- 
out breaking,  with  intent  to  commit  a  felony,  and  the 
breaking  out  of  the  house,  should  constitute  the  crime 
of  burglary.  And  such,  we  believe,  is  the  law  in 
England  to  the  present  day.7     The  indictment  should 

1  State  i'.  Scripture,  42  N.  H.  485;  Rolland  v.  Com.  (Pa.),  5  Weekly 
Notes  of  Cases,  53;  State  v.  Wilson,  Coxe  (N.  J.),  439. 

2  State  v.  Scripture,  42  N.  H.  485;  Rolland  v.  Com.  (Pa.),  5  Weekly 
Notes  of  Cases,  53  ;  State  v.  Wilson,  Coxe  (N.  J.),  439. 

■■■  State  r.  Clark,  42  Vt.  029. 
*  2  Bishop   Cr.  Law,  §  106. 
6  Pott,  §  79. 
•  12  Anne,  c.  1,  §  7. 

i  Steph.  Dig.  Cr.  Law,  art.  819  :  Rex  v.  MeK^arney,  2  Jebb  C  C 
68  ;  s   C   l'  I. tad.  Cr.  Cas.  02  and  note. 


88  CRIMINAL  LAW. 

charge  the  breaking  out ;  and  if  so  charged,  it  seems 
that  in  this  country  the  prisoner  may  be  convicted, 
where  the  statute  of  Anne  has  been  adopted  as  part 
of  the  common  law,  or  has  been  substantially  followed 
by  the  statute  of  the  State ; 1  but  not  otherwise.2  No 
case  has  been  found  of  a  conviction  under  such  an  in- 
dictment ;  and  it  is  at  least  doubtful  if  it  would  now 
anywhere  be  held,  unless  under  the  clearest  evidence, 
that  the  statute  of  Anne  is  obligatory,  that  a  breaking 
out  to  escape  is  a  sufficient  breaking  to  constitute 
burglary.3 

§  77.  Entry.  —  In  order  to  constitute  an  entry,  it  is 
not  necessary  that  the  whole  person  should  be  within 
the  house.  Thrusting  in  the  hand  or  a  stick,  for  the 
purpose  of  getting  possession  of  goods  within,  through 
an  aperture  broken  for  the  purpose,  is  an  entry.  But 
the  mere  passage  of  the  instrument  through  in  break- 
ing, as  an  augur,  by  which  the  break  is  effected,  has 
been  held  not  to  be  an  entry ; 4  yet  the  thrusting  the 
hand  underneath  the  window,  to  lift  it,  so  that  the 
fingers  extend  to  the  inside  of  the  window,  has  re- 
cently been  held  to  be  a  sufficient  entry.6  So  the  send- 
ing in  a  boy  after  breaking,  the  boy  being  an  innocent 
agent,  to  bring  out  the  goods,  is  an  entry  by  the  burg- 
lar, who  all  the  while  remains  outside.6  The  cases  seem 
to  establish  the  rather  nice  distinction,  that  where  the 

i  State  v.  McPherson,  70  N.  C.  239. 

2  White  v.  State,  51  Ga.  285. 

3  Rolland  v.  Com.  (Pa.),  5  Weekly  Notes  of  Case3,  53. 

4  4  Bl.  Com.  227 ;  Rex  v.  Hughes,  406 ;  Rex  v.  Rust,  1  Moody 
C.  C.  183. 

5  France  v.  State,  42  Tex.  276.  See  also  Rex  v.  Davis,  R.  &  R 
C.  C.  499. 

e  1  Hale  P.  C.  555. 


BURGLARY.  89 

implement  held  in  the  hands  passes  within  the  enclos- 
ure for  the  purpose  of  breaking  only,  there  is  no  entry  ; 
but  if  either  the  hand  or  implement  passes  in  for  the 
purpose  of  committing  the  intended  felony,  there  is  an 
entry.  And,  upon  principle,  there  seems  to  be  no 
doubt  that  one  who  shoots  a  ball  or  thrusts  a  sword 
through  a  window  with  intent  to  kill,  though  he  fail 
of  his  purpose  to  kill,  is  nevertheless  guilty  of  break- 
ing and  entering.1 

§  78.  Dwelling  houBe.  Occupancy.1 — As  ill  arson, 
the  dwelling-house  comprehends  all  the  buildings  with- 
in the  same  curtilage  or  common  fence,  and  used  by  the 
owner  as  part  and  parcel  thereof,  though  not  contigu- 
ous ; 2  as,  for  instance,  a  smoke-house,  the  front  part 
and  doors  of  which  were  in  the  yard  of  the  dwelling- 
house,  though  the  rear,  into  which  the  break  and  entry 
were  made,  was  not.3  It  must  be  a  place  of  actual  res- 
idence or  habitation,  though  it  is  not  essential  that  any 
one  should  be  within  at  the  very  time  of  the  offence. 
If  the  occupants  are  away  temporarily,  but  with  the 
design  of  returning,  and  it  is  the  house  where  they 
may  be  said  to  live,  —  their  actual  residence,  —  this 
constitutes  it  their  dwelling-house.  But  occupation 
otherwise  than  as  a  place  of  residence,  as  for  storage, 
or  even  casually  for  lodgings,  or  if  persons  not  of  the 
family  nor  in  the  general  service  of  the  owner  sleep, 
but  do  not  otherwise  live,  there,  and  for  the  purpose  of 
protection  only,  it  is  not  a  dwelling-house  in  the  sense 
of  the  law.  Nor  is  a  temporary  booth  or  tent  erected 
at  a  fair  or  market  such  a  dwelling-house.4     If,  how- 

1  Ante,  §  6.  2  Anie<  §  50. 

8  Fisher  v.  State,  43  Ala.  17. 

*  Auiour  v.  State,  3  Humph,  f  Term.)  379  ;  Com.  v.  Brown,  3  Rawle 


90  CRIMINAL  LAW. 

ever,  the  house  be  habitually  occupied  in  part  as  a 
storehouse  and  in  part  as  the  lodging-place  of  the 
servants  and  clerks  of  the  owner,  it  is  his  dwelling- 
house.1  And  if  it  be  habitually  slept  in  by  one  of  the 
family,  or  one  in  the  service  of  the  owner,  even  if 
slept  in  for  the  purpose  of  protection,  it  has  been  held 
to  be  a  dwelling-house  within  the  sense  of  the  law ; 2 
and  by  the  same  court,  that  if  the  person  so  sleeping 
in  the  store  for  its  protection  be  not  a  member  of  the 
family,  or  in  the  service  of  the  same,  he  is  but  a  watch- 
man, and  the  store  cannot  be  said  to  be  the  dwelling- 
house  of  the  owner.3 

§  79.  Dwelling-house.  Ownership.  —  There  may  be 
many  dwelling-houses  under  the  same  roof ;  as,  where 
separate  apartments  are  rented  to  divers  occupants, 
who  have  exclusive  control  of  their  several  apartments.4 
If,  however,  the  general  owner  also  occupies,  by  him- 
self or  his  servant,  the  building  in  part,  exercising  a 
supervision  over  it,  and  letting  it  to  lodgers  or  to 
guests,  the  house  must  be  treated  as  his,  unless,  as  in 
some  States  is  the  case,  a  special  or  constructive  owner- 
ship is  made  by  statute  sufficient  evidence  of  owner- 
ship.5 But  this  is  rather  a  question  of  procedure  not 
pertaining  to  the  definition  of  the  crime.6 

A  church  being,  as  Coke  says,  the  mansion-house  of 
the  Almighty,  is  by  the  common  law  a  dwelling-house, 

(Pa.),  207;  State  v.  Jenkins,  5  Jones  (N.  C),  430;  3  Greenl.  Ev 
§§  79,  80. 

1  Ex  parte  Vincent,  26  Ala.  145. 

2  State  v.  Outlaw,  72  N.  C.  698. 
8  State  v.  Potts,  75  N.  C.  364. 

*  Mason  v.  People,  26  N.  Y.  200 

5  3  Greenl.  Ev.  §§  57,  81;  State  v.  Outlaw,  72  N.  C.  598. 

8  See  also  Arson,  ante,  §  52. 


BURGLARY.  91 

within  the  meaning  of  the  definition  of  burglary.1  So 
was  a  walled  town.2 

§  80.  Time.  — The  time  of  both  breaking  and  entering 
must  be  in  the  night,  and  this,  at  common  law,  was 
usually  hold  to  be  the  period  during  which  the  face  of 
a  person  cannot  be  discerned  by  the  light  of  the  sun  ; 
though  some  authorities  fixed  the  limits  more  accu- 
rately as  the  period  between  sunset  and  sunrise.3  Now, 
by  statute4  in  England,  night  begins  at  nine  and  ends 
at  six.  In  Massachusetts,  the  meaning  of  "  night- 
time," in  criminal  prosecutions,  is  defined  to  be  from 
one  hour  after  sunset  to  one  hour  before  sunrise  ; 5  and 
doubtless  other  States  have  fixed  the  limit  by  statute. 
It  may  happen  that  the  acts  culminating  in  the  com- 
mission of  the  intended  felony  extend  through  several 
days  and  nights,  as  where  one  is  engaged  day  and 
night  in  working  his  way  through  a  substantial  parti- 
tion wall.  If  the  actual  perforation  be  made  during 
one  night,  and  the  entry  on  the  same  or  a  subsequent 
night,  the  offence  is  complete,  both  being  in  pursuance 
of  the  same  design.6  In  some  States,  by  statute,  the 
question  of  time  becomes  immaterial. 

§  81.  Intent  —  As  the  breaking  and  entry  must  be 
with  intent  to  commit  a  felony,  the  intent  to  commit 
a  misdemeanor  only  would  not  be  sufficient  to  con- 
stitute the  crime.  Thus,  a  break  and  entry  with  in- 
tent to  commit  adultery  would  or  would  not  constitute 
the  offence,  according  as  adultery  might  be  a  felony, 

1  3d  Inst.  64  ;  Reg.  v.  Baker,  3  Cox  C.  C.  681. 

-  4  Bt.  Com.  224. 

8  1  Hawk.  P.  C.  bk.  1,  c.  38,  §  2. 

*  1  Vict.  c.  86,  §  4. 

»  Com.  c  Williams,  2  Cush.  (Mass.)  582. 

-  Rex  v.  Smith,  K.  &  R.  417  ;  Com.  v.  Glover,  111  Mass.  396. 


92  CRIMINAL  LAW. 

misdemeanor,  or,  as  in  some  States  it  is,  no  crime  at 
all;1  and  if  the  intent  be  to  cut  off  the  owner's  ears, 
this  is  not  a  burglary,  since  the  cutting  off  an  ear  does 
not  amount  to  felony  —  mayhem  —  at  common  law.2 
So  if  the  person  who  breaks  is  so  intoxicated  as  to  be 
incapable  of  entertaining  any  intent.3 

CHAMPERTY. 

See  Barretry. 

CHEATING. 

§  82.  Cheating  is  the  fraudulent  pecuniary  injury  of 
another  by  some  token,  device,  or  practice  of  such  a  char- 
acter as  is  calculated  to  deceive  the  public.4  Thus,  sell- 
ing bread  for  the  army,  and  marking  the  weight  falsely 
upon  the  barrels  ; 5  or  selling  by  false  weights  6  or  meas- 
ures ;7  or  playing  with  false  dice  ; 8  or  by  arranging  the 
contents  of  a  barrel  so  that  the  top  shall  indicate  that 
it  contains  one  thing,  while  in  fact  it  contains  another 
and  worthless  thing,  coupled  with  the  assertion  that 
the  contents  are  "  just  as  good  at  the  bottom  as  at  the 
top  ;  " 9  or  by  selling  a  picture  or  cloth  falsely  marked 
with  the  name  or  trade-mark  of  a  well-known  artist 10  or 

i  State  v.  Cooper,  16  Vt.  551. 

2  Com.  v.  Newell,  7  Mass.  245. 

8  State  v.  Bell,  29  Iowa,  316. 

*  Hawk.  P.  C.  bk.  1,  c.  71,  §  1.  See  also  Rex  r.Wheatly,  Burr.  1125 ; 
s.  c.  1  Benn.  &  Heard's  Lead.  Cr.  Cas.  1,  and  notes,  as  to  distinction 
between  mere  private  cheats  and  those  which  affect  the  public  so  as 
to  become  criminal. 

6  Respublica  v.  Powell,  1  Dall.  (Pa.)  47. 

6  Rex  v.  Young,  3  T.  R.  104. 

1  Rex  v.  Osborn,  3  Burr.  1697;  People  v.  Fish,  4  Parker  (N.  Y.) 
C  It.  206. 

8  Leeser's  Case,  Cro.  Jac.  497  ;  Rex  v.  Maddock,  2  Rolle,  107. 

9  State  v.  Jones,  70  N.  C.  321. 
io  Reg.  v.  Class,  D.  &  B.  460. 


CHEATING.  93 

manufacturer  ; 1  or  by  the  use  of  false  papers,3  —  have 
been  held  to  be  cheats  at  common  law.  So  has  ob- 
taining release  from  imprisonment  by  a  debtor  by 
means  of  a  forged  order  from  the  creditor  upon  the 
sheriff.3  So  it  has  been  held  that  the  obtaining  from 
an  illiterate  person  a  signature  to  a  note  different  in 
amount  from  that  agreed  on,  by  false  reading,  is  a 
cheat.4  So,  doubtless,  would  be  obtaining  money  by 
begging,  under  the  device  of  putting  the  arm  in  a 
sling,  for  the  purpose  of  making  it  appear  that  it  had 
been  injured,  when  it  had  not.  It  is  an  indictable 
offence  to  maim  one's  self  whereby  the  more  success- 
fully to  beg,5  or  to  disqualify  one's  self  for  service  as  a 
soldier.6 

Mere  lying  by  words,  although  successful  in  fraudu- 
lently obtaining  the  goods  of  another,  without  the  aid 
of  some  visible  sign,  token,  device,  or  practice,  has 
never  been  held  at  common  law  to  be  a  cheating.7 

§  83.  Token.  Device.  —  A  token  is  a  thing  which 
denotes  the  existence  of  a  fact,  and  if  false,  and  calcu- 
lated to  deceive  generally,  it  will  render  the  person 
who  knowingly  uses  it  for  the  purpose  of  inducing  the 
belief  that  the  fact  denoted  does  exist,  to  the  pecuniary 
injury  of  another,  guilty  of  the  crime  of  cheating.     A 

1  Edward's  Case,  Trem.  P.  C.  103. 

2  Serlested's  Case,  Leitch,  202  ;  Com.  v.  Boynton,  2  Mass.  77 ; 
Com.  v.  Speer,  Va.  Cas.  65;  Lewis  v.  Com.,  2  S.  &  R.  (Pa.)  551; 
State  v.  Stroll,  1  Rich.  (S.  C.)  244. 

c  Rex  v.  Fawcett,  2  East  P.  C.  862. 

*  Hill  v.  State,  1  Yerg.  (Tenn.)  76 ;  1  Hawk.  P.  C  bk.  1,  c.  71,  §  1. 

»  1  Inst.  127. 

6  3  Burn's  J.  115. 

7  Rex  v.  Grantham,  11  Mod.  222;  Rex  v.  Osborn,  3  Burr.  1697  ; 
Com.  v.  Warren,  6  Mass.  72;  State  v.  Delyon,  1  Bay  (S.  C),  353; 
People  i'.  Babcock,  7  Johns.  (N.  Y.)  201. 


94  CRIMINAL  LAW. 

business  card,  in  common  form,  purporting  to  be  the 
card  of  an  existing  firm,  which  is  not  genuine,  and 
asserts  as  fact  what  is  not  true,  is  a  false  token.1 

A  forged  order  for  the  delivery  of  goods  is  held  to 
be  a  token,  and  obtaining  goods  in  this  way  a  cheat, 
while  the  obtaining  them  by  the  mere  verbal  false  rep- 
resentation that  the  person  purporting  to  be  the  signer 
of  the  order  had  sent  for  them  would  not.2  And  so  is 
the  forged  check  of  another  than  the  person  who  pre- 
sents it ; 3  but  not,  it  is  said,  his  own  worthless  check 
upon  a  bank  where  he  has  never  had  a  deposit,4  this 
being  merely  a  false  representation  in  writing.  But  it 
is  difficult  to  see  why  the  writing  is  a  token  in  one  case 
and  not  in  the  other.  Such  subtle  distinctions  have 
now  very  generally  been  obviated  by  statutes  making 
the  obtainmentof  money  by  false  pretences  criminal.5 

False  personations  were  formerly  held  to  be  cheats,6 
and  even  falsehoods  as  to  personal  identity,  age,  or  con- 
dition ;  and  perhaps  would  now  be,7  where  statutes  do 
not  provide  for  such  frauds.  There  seems  to  be  no 
reason,  upon  principle,  why  one  who  falsely  asserts 
that  he  is  what  he  naturally  or  by  device  falsely  appears 
to  be,  should  not  be  held  guilty  of  cheating,  as  avail- 
ing himself  of  a  visible  sign.8 

§  84.  Swindling.  —  In  South  Carolina,  the  subject  of 
cheating  was  early  made  a  matter  of  statutory  regula- 

1  Jones  v.  State,  50  Ind.  473. 

2  Rex  v.  Thorn,  C.  &  M.  206 ;  Rex  v.  Grantham,  11  Mod.  222. 
8  Com.  v.  Boynton,  2  Mass.  77. 

*  Rex  v.  Johnson,  3  Camp.  370. 
6  See  False  Pretences. 

6  Rex  v.  Dupee,  2  Sess.  Cas.  11. 

7  Rex  v.  Hanson,  Say.  229. 
6  1  Gab.  Cr.  Law,  204. 


CHEATING.     CONSPIRACY.  95 

tion,  providing  for  the  punishment  of  "any  person  who 
shall  overreach,  cheat,  or  defraud  by  any  cunning, 
swindling  acts  and  devices,  so  that  the  ignorant  or  un- 
wary may  be  deluded  thereby  out  of  their  money  or 
property,"  under  which  obtaining  horses  from  an  un- 
sophisticated person  by  means  of  tin-eats  to  prosecute 
for  horse-stealing,  and  that  the  pretended  owner  would 
have  his  life  if  he  did  not  give  them  up,  was  held  in- 
dictable.1 And  in  Georgia,  obtaining  money  by  false 
pretences  is  a  form  of  swindling.2 

■^AZ-  CONSPIRACY. 

§  85.  We  have  already  seen  that  it  is  a  crime  ! 
one  person  to  solicit  another  to  commit  a  crime.3  It 
is  one  step  in  a  series  of  acts,  which,  if  continued, 
will  result  in  an  overt  act ;  and  although  it  may  be 
ineffectual,  it  is  part  and  parcel  of  what,  if  consum- 
mated, becomes  a  complete  and  effectual  crime.  It 
therefore  partakes  of  its  criminality,  and  belongs 
strictly,  perhaps,  to  that  class  of  crimes  which  is  in- 
cluded under  "  attempts."  Mutual  solicitation  by  two 
or  more  persons  is,  of  course,  upon  the  same  grounds, 
equally  criminal  ;  and  when  this  mutual  solicitation 
has  proceeded  to  an  agreement,  it  is  regarded  by  the 
law  as  a  complete  and  accomplished  crime,  which  it  de-  r 
nominates  conspiracy,  and  defines  to  be  '£an  agreement 
to  do  against  the  rights  of  another  an  unlawful  act, 
or  use  unlawful  means.'']  It  is  immaterial  that  the 
end  sought  is  lawful,  provided  the  means  by  which  it 
is  to  be  sought   are   unlawful.      Nor  is  it  necessary 

i  State  v.  Vaughan,  1  Bay  (S.  C),  282 
2  Par.  Di£.  art.  2426. 
8  Ante,  Attempts,  §  29. 


96  CRIMINAL  LAW. 

that  that  which  is  agreed  to  be  done  should  be  crimi- 
nal, or  in  itself  indictable.  It  is  sufficient  if  it  be 
unlawful.1 

§  86.  In  what  Sense  unlawful. — Yet  perhaps  not 
every  unlawful  act  will  support  an  indictment  for  con- 
spiracy. Thus,  it  has  been  held  in  England  that  an 
agreement  to  trespass  upon  the  lands  of  another,  as  to 
poach  for  game,  is  no  conspiracy.2  And  this  case  has 
been  followed  in  New  Hampshire.3  So  it  has  been 
held  that  an  agreement  to  sell  an  unsound  horse  with  a 
warranty  of  soundness  is  not  an  indictable  conspiracy.4 
On  the  other  hand  it  has  been  held  in  New  Jersey 
that  to  support  an  indictment  for  conspiracy  there 
must  be  indictable  crime,  either  in  the  end  proposed  or 
the  means  to  be  used.6  But  all  the  above  are  cases 
upon  which  later  decisions  have  thrown  great  doubt, 
and  neither,  perhaps,  would  now  be  followed  except 
upon  its  exact  facts.6 

It  may  be  that  some  unlawful  acts  or  means  might 
be  held  too  trivial  to  support  a  charge  of  conspiracy ; 
but  what  they  are,  and  how  trivial,  we  have  no  means 
of  determining.7 

1  Reg.  v.  Bunn,  12  Cox  C.  C.  316 ;  8.  c.  1  Green's  Cr.  Law  Rep. 
52 ;  Reg.  v.  Warburton,  Law  Rep.  1  C.  C.  274 ;  Com.  v.  Hunt,  4  Met. 
(Mass.)  Ill;  State  v.  Mayberry,  48  Me.  218;  State  v.  Rowley,  12 
Conn.  101 ;  People  v.  Mather,  4  Wend.  (N.  Y.)  229;  Smith  v.  People, 
25  111.  17  ;  State  v.  Burnhain,  15  N.  H.  396. 

2  Rex  v.  Turner,  13  East,  228. 
8  State  v.  Straw,  42  N.  H.  393. 
*  Rex  v.  Pywell,  1  Stark.  402. 
6  State  v.  Rickey,  4  Halst.  293. 

6  See  Reg.  v.  Kenrick,  5  Q.  B.  62  ;  Reg.  v.  Rowlands,  5  Cox  C.  C. 
490 ;  Lambert  v.  People,  9  Cow.  (N.  Y.)  577,  in  addition  to  cases  cited 
ante,  §  85. 

7  See  Reg.  v.  Kenrick,  ubi  supra. 


CONSPIRACY.  97 

However  that  may  be,  it  seems  to  be  settled  that  all 
combinations  to  defeat  or  obstruct  the  course  of  public 
justice,  as  by  the  presentation  of  false  testimony,1  or 
tampering  with  witnesses,2  or  with  jurors,3  or  with  the 
making  up  of  the  panel,  or  preventing  the  attendance  of 
witnesses,4  or  by  destroying  evidence  ; 6  all  agreements 
to  cheat  or  injure  the  public  or  individuals,  as  by  impos- 
ing upon  the  public  a  spurious  article  for  the  genuine,6 
or,  by  manufacturing  false  news  or  using  coercive 
means  to  enhance  or  depress  the  price  of  property  or 
labor,7  or  by  unlawful  means  to  compel  an  employer  to 
increase,8  or  employe's  to  reduce,9  the  rate  of  wages ; 
all  agreements  to  injure  or  disgrace  others  in  their 
character,  property,  or  business,  as  by  seducing  a 
female,10  or  by  abducting  a  minor  daughter,  for  the  pur- 
pose of  marrying  her  against  the  wish  of  her  parents,11 
or  by  hissing  an  actor  or  injuring  a  play,12  or  by  de- 
stroying one's  property  or  depreciating  its  value,13  or 

i  Rex  v.  Manbey,  6  T.  R.  619. 

2  Rex  v.  Johnson,  1  Show.  1. 

8  Rex  v.  Gray,  1  Burr.  510. 

4  Rex  v.  Stevenson,  12  East,  362. 

6  State  v.  DeWitt,  2  Hill  (S.  C),  282. 

6  Com.  v.  Judd,  2  Mass.  329. 

'  Reg.  v.  Blake,  6  Q.  B.  126;  Morris  River  Coal  Co.  v.  Barclay 
Coal  Co.,  68  Pa.  St.  173  ;  Levi  v.  Levi,  6  C.  &  P.  239 ;  Rex  v.  Be 
Beranger,  3  M.  &  S.  68. 

8  People  v.  Fisher,  14  Wend.  (N.  Y.)  9;  Reg.  v.  Brown,  12  Cox 
C.  C.  316;  Cora.  v.  Hunt,  4  Met.  Ill;  State  v.  Donaldson,  32  N.  J. 
151. 

•  Rex  v.  Hammond,  2  Esp.  719. 

10  Smith  v.  People,  25  III.  17;  Anderson  v.  Com.,  6  Rand.  (Va.) 
627. 

"  Mifflin  v.  Com.,  5  W.  &  S.  (Pa.)  461. 

U  Clifford  c.  Brandon,  2  Camp.  358. 

w  State  v.  Ripley,  31  Me.  386. 
7 


98  CRIMINAL   LAW. 

by  falsely  charging  a  man  with  being  the  father  of  a 
bastard  child,1  or  by  getting  him  drunk  in  order  to 
cheat  him  ; 2  and,  of  course,  all  agreements  to  commit 
acts  in  themselves  criminal,  or  to  be  accomplished  by 
criminal  means,  and  all  acts  contra  bonos  mores,3  — 
are  indictable  conspiracies. 

§  87.  Agreement  the  Gist  of  the  Offence.  —  The  law 
regards  this  unlawful  combination  of  two  or  more  evil- 
disposed  persons  as  especially  dangerous,  since  increase 
of  numbers,  mutual  encouragement  and  support,  and 
organization,  increase  the  power  for,  and  the  proba- 
bility of,  mischief.  And  the  conspiracy  is  punished  to 
prevent  the  accomplishment  of  the  mischief.  It  is, 
therefore,  entirely  immaterial  whether  the  agreement 
be  carried  out,  or  whether  any  steps  be  taken  in  pur- 
suance of  the  agreement.  When  the  agreement  is 
made,  the  crime  is  complete.4  And  it  seems  to  be 
settled,  without  substantial  dissent,  that  persons  may 
be  indictable  for  conspiring  to  do  that  which  they 
might  have  individually  done  with  impunity.5 

If  the  conspiracy  be  executed,  and  a  felony  be  com- 
mitted in  pursuance  of  it,  the  conspiracy  disappears, 
being  merged  in,  and  punishable  as  part  of,  the  felony.6 

1  Reg.  v.  Best,.  2  Ld.  Raym.  1167. 

2  State  v.  Younger,  1  Dev.  (N.  C.)  357. 

»  State  v.  Buchanan,  5  H.  &  J.  (Md.)  317;  States  Murphy,  6  Ala. 
765 ;  Young's  Case,  2  T.  R.  734. 

*  United  States  v.  Cole,  5  McLean  C.  Ct.  213 ;  State  v.  Noyes, 
25  Vt.  415;  Rex  ».  Best.  2  Ld.  Raym.  1167;  Hazen  v.  Com.,  23  Pa. 
St.  355 ;  Com.  v.  Judd,  2  Mass.  329 ;  Com.  v.  Ridgway,  2  Ashm.  (Pa.) 
247. 

6  State  v.  Buchanan,  5  II.  &  J.  (Md.)  317;  Reg.  v.  Gompertz, 
9  Q.  B.  824;  Morris  River  Coal  Co.  v.  Barclay  Coal  Co.,  68  Pa.  St. 
173. 

B  Com.  v.  Blackburn,  1  Duv.  (Ky.)  4;  Com.  v.  Kingsbury, 
6  Mass.  106  ;  State  v.  Mayberry,  48  Me.  218. 


CONSPIRACY.  99 

It  is  otherwise,  however,  when  a  misdemeanor  is  com- 
mitted. Here  there  is  no  merger,  and  the  conspiracy 
is  separately  punishable.1 

§  88.  Intent.  —  As  in  common-law  offences  gener- 
ally there  must  be  an  actual  wrongful  intent  in  order 
to  render  the  conspiracy  criminal.  Thus,  if  a  per- 
son be  deceived  into  becoming  a  conspirator,  and  is 
himself  acting  in  good  faith,  he  is  not  guilty.2  So,  if 
two  parties  conspire  to  procure  another  to  violate  a 
statute,  in  order  that  they  may  extort  money  from  him 
by  threats  of  prosecution,  they  are  indictable.  But  if 
the  object  be  to  secure  the  detection  and  punishment  of 
suspected  offenders,  they  are  not.3 

§  89.  ah  equally  Guilty.  —  All  conspirators  are 
equally  guilty,  whether  they  were  partakers  in  its 
origin,  or  became  partakers  at  a  subsequent  period  of 
the  enterprise ;  and  each  is  responsible  for  all  acts  of 
his  confederates,  done  in  pursuance  of  the  original  pur- 
pose.4 

§  90.  Effect  of  Local  Laws.  —  In  determining  what 
is  indictable  as  a  conspiracy,  much  depends  upon 
the  local  laws  of  the  place  of  the  conspiracy.  It 
may  well  be  that  in  one  jurisdiction  that  may  be 
unlawful,  and  even  criminal,  which  in  another  is  not ; 
and  therefore  it  does  not  follow  that  because  in  one 
State  or  country  where  the  common  law  is  in  force  an 

1  State  v.  Murray,  15  Me.  100;  People  v.  Mather,  4  Wend.  (N.  Y.) 
265;  People  v.  Richards,  1  Mann.  (Mich.)  216;  State  v.  Murphy, 
6  Ala.  765 ;  State  v.  Noyes,  25  Vt.  415. 

2  Rex  v.  Whitehead,  1  C.  &  P.  67. 
8  Hazen  v.  Com.,  23  Penn.  St.  355. 

4  People  v.  Mather,  4  Wend.  (N.  Y.)  229;  Ferguson  v.  State, 
82  Ga.  658 ;  Frank  v.  State,  27  Ala.  37 ;  State  v.  Wilson,  30  Conn. 
500. 


100  CRIMINAL  LAW. 

agreement  to  do  a  particular  act  may  be  a  conspiracy, 
the  same  would  be  true  of  another.  This  would  de- 
pend upon  local  considerations.  An  indictment  and 
conviction  in  one  State  may  not  be  a  precedent  in  an- 
other. Upon  this  point  the  following  observations1  are 
worthy  of  careful  consideration  :  "  Although  the  com- 
mon law  in  regard  to  conspiracy  is  in  force  in  this  Com- 
monwealth, yet  it  will  not  necessarily  follow  that  every 
indictment  at  common  law  for  this  offence  is  a  precedent 
for  a  similar  indictment  in  this  State.  The  general  rule 
of  the  common  law  is,  that  it  is  a  criminal  and  indict- 
able offence  for  two  or  more  to  confederate  and  com- 
bine together,  by  concerted  means,  to  do  that  which  is 
unlawful  or  criminal,  to  the  injury  of  the  public,  or 
parties  or  classes  of  the  community,  or  even  to  the 
rights  of  an  individual.  This  rule  of  law  may  be 
equally  in  force  as  a  rule  of  the  common  law  in  Eng- 
land and  in  this  Commonwealth ;  and  yet  it  must 
depend  on  the  local  laws  of  each  country  to  determine 
whether  the  purpose  to  be  accomplished  by  the  combi- 
nation, or  the  concerted  means  of  accomplishing  it,  be 
unlawful  or  criminal  in  the  respective  countries.  All 
these  laws  of  the  parent  country,  whether  rules  of  the 
common  law  or  early  English  statutes,  which  were 
made  for  the  purpose  of  regulating  the  wages  of  labor- 
ers, the  settlement  of  paupers,  and  making  it  penal  for 
any  one  to  use  a  trade  or  handicraft  to  which  he  had 
not  served  a  full  apprenticeship,  —  not  being  adapted 
to  the  circumstances  of  our  colonial  condition, —  were 
not  adopted,  unless  approved,  and  therefore  do  not 
come  within  the  description  of  the  laws  adopted  and 

1  Shaw,  C.  J.,  Com.u.  Hunt,  4  Met.  (Mass.)  111. 


CONSPIRACY.  CONTEMPT  OF  COURT.     101 

confirmed  by  the  provision  of  the  Constitution  already 
cited.  This  construction  will  do  something  towards 
reconciling-  the  English  and  American  cases,  and  may 
show  .  .  .  why  a  conviction  in  England,  in  many 
cases,  would  not  be  a  precedent  for  a  like  conviction 
here." 

t i^cUl.  -CONTEJIl'T    OF    COUUT. 

•     11"  -^-"7"''' 

Uro.sw       §  Contempt  of  court  is  both  a  crime  indictable 

at  common  law  when  it  amounts  to  an  obstruction  of 
x  - 

.public  justice,  and  it  is  also,  in  many  cases,  summarily 

1  punishable,  without  indictment,  by  the  court,  when  its 

rules  are  violated,  its  authority  defied,  or  its  dignity 

offended. 

1*^4— ~      It  is  the  latter  class  of  cases  which  constitute  what 

are  technically  called  contempts  of  court,  and,  though 

'^xo-^viiot  well  defined,  may  be  said  to  embrace  all  corrupt  ^"^ 

acts  tending  to  prevent  the  court   from  discharging 
0  a- vo  jts  functions. 

In  the  former  case,  it  belongs  to  the  category  of 
crimes,  though  not  bearing  any  specific  name,  and  is 


included  in  the  general  class  of  offences  against  public 
justice. 


v  In  the  latter  case,  it  is  not  strictly  a  crime, —  though 
substantially  so,  being  punishable  by  fine  and  imprison- 
ment,—  but  is  noticed  summarily  by  the  courts  as  an 

'  infraction  of  order  and  decorum,  which  every  court  has !  v 
the  inherent  power  to  punish,  within  certain  limits, —  ' 
a  power  necessary  to  their  efficiency  and  usefulness, 
and  resorted  to  in  case  of  violation  of  their  rules  and 


orders,  disobedience  of  their  process,  or  dist 
(\     /'their  proceedings.1 


■ 


turbance  of" 
their  proceedings.1 

^1  Ex  parte  Robinson,  19  Wall.  (U.  S.)  505;  8.0.  2  Green's  Cr.  Law 

Rep.  loo.     In  Pennsylvania,  it  is  held  that  a  cuurt  not  of  record,  as      './*•*'  v : 


*V 


102  CRIMINAL  LAW. 


VVA*^"1    §  92.  What  are  Contempts.  —  All  disorderly  conduct, 
or  conduct  disrespectful  to  the  court,  or  calculated  to 
interrupt  or  essentially  embarrass  its  business,  whether 
in  the  court-room  or  out  of  it,  yet  so  near  as  to  have 
the  same  effect,  such  as  making  noises  in  its  vicinity,1 
refusal  by  a  witness  to  attend  court,2  or  to  be  sworn 
V*W  to  testify,3  or  of  any  officer   of  court  to   do   his 
{ i^cltduty,4  or  of  a  person  to  whom  a  habeas  corpus  is  di- 
^"7  rected,  to  make  return ; 6  assaulting  an  officer  of  the 
court,  or  any  other  person  in  its  presence,6  or   one 
of  the   judges  during  recess ; 7  improperly  communi- 
cating with  a  juror,8  or  by  a  juror  with  another  person,9 
—  will  usually  be  dealt  with,  upon  their  occurrence, 
■W-^         pendente  lite,  in  order  to  prevent  the  evil  consequences 
of  a  wrongful  interference  with  the  course  of  justice. 

In  other  cases,  proceedings  more  or  less  summary      I  \ ' 
will  be  had,  whenever  a  corrupt   attempt,  by  force,    ■ 
fraud,  bribery,  intimidation,  or  otherwise,  is  made  to 


Ft 

d 


r  T 


obstruct  or  impede  the  due  administration  of  justice. 
Thus,  the  courts  will  take  notice  of,  and  punish,  in  a 
summary  way,  the  use  by  an  attorney  of  contemptuous 

a  justice  of  the  peace,  has  not  the  power  to  proceed  summarily  to 
punish  for  contempt,  the  power  not  being  necessary,  as  the  justice 
may  proceed  immediately  to  bind  over  for  indictment.     But  the  case 
is  unsupported  elsewhere,  and  must  stand,  if  it  can  stand  at  all,  upon      ^ 
some  peculiarity  of  the  statutes  of  that  State. 

1  State  v.  Coulter,  Wright  (Ohio),  421. 

2  Johnson  v.  Wideman,  Dudley  (S.  C),  70.  -f 

8  Stansbury  v.  Marks,  2  Dall.  (U.  S.)  213;  Lott  v.  Burrel,  2  Mill 
(S.  C),  167. 

4  Chittenden  v.  Brady,  Ga.  Dec.  219 

5  State  v.  Philpot,  Dudley  (Ga.),  46. 

6  People  v.  Turner,  1  Cal.  152. 

7  State  v.  Garland,  25  La.  Ann.  532 
B  State  v.  Doty,  32  N.  J.  103. 

9  State  v.  Helvenston,  R.  M.  Cliarlt   (Ga.)  48.  <>  P 


. 


fc* 


CONTEMPT  OF  COURT. 

language  in  the  pleadings,1  or  a  resort  to  the  public 
press,  in  order  to  influence  the  proceedings  in  a  pend- 
ing case,2  or  any  libellous  publication,  though  indictable 
as  such,  relative  to  their  proceedings,  tending  to  im- 
pair public  confidence  and  respect  in  them.3  So  the 
courts  will  intervene  in  like  manner  if  attempts  are 
made  to  bribe  or  intimidate  a  judge,  juror,  or  any 
officer  of  court,  in  relation  to  any  matter  pending 
before  them,  or  upon  which  they  are  to  act  officially.4 
They  will  also  punish  the  circulation  of  a  printed 
statement  of  a  pending  case  before  trial,  by  one  of  the 
parties  to  the  prejudice  of  the  other  ;6  the  publishing  a 
report  of  the  proceedings  of  a  trial,  contrary  to  the 
direct  order  of  court ; 6  or  publishing  such  proceedings 
with  comments  calculated  to  prejudice  the  rights  of 
the  parties ; 7  the  preventing  the  attendance  of  a  wit- 
ness, after  summons,  or  procuring  his  absence,  so  that 
he  could  not  be  summoned  ; 8  and,  generally,  all  such 
acts  of  any  and  all  persons  as  tend  substantially  to 
interfere  with  their  efficient  service  in  the  administra- 
tion of  justice  for  which  they  are  established. 

§93.    Proceedings.  —  When    the  contempt   is   com- 

fill 

1  State  v.  Keene,  6  La.  375. 

-  Matter  of  Darby,  3  Wheeler  Cr.  Cas.  11. 

8  State  v.  Morrill,  16  Ark.  384  ;   State  v.  Earl,  41  Ind.  464;  In  re 

-  .  Sturock,  48  N.  H.  428;  Oswald's  Case,  1  Dall.  (Pa.)  819;  Peopk-  v. 

Freer,  1   Caines  (N.  Y.),484;  People  v.  Wilson,  64  111.  195;    s.   c. 

1  Am.  Cr.  Rep.  107 ;  Reg.  v.  Skipworth,  12  Cox  C.  C.  371 ;  s.  c.  1 

Green's  Cr.  Law  Rep.  121  ;  In  re  Moore,  63  N.  C.  397. 

*  Charlton's  Case,  2  M.  &  C.  316;  Reg.  v.  Onslow,  12  Cox  C.  G 
358  ;  s.  c.  1  Green's  Cr.  Law  Rep.  110 ;  State  v.  Doty,  32  N.  J.  403. 

5  Rex  ».  Jollieffe,  4  T.  R.  285. 

«  Rex  v.  Clement,  4  B.  &  Aid.  218. 

7  Reg.  v  O'Doherty,  5  Cox  C.  C.  348. 

8  MeConnell  i>.  State,  18  Dad.  298. 


1^ 

— - 

104  CRIMINAL  LAW. 

mitted  in  the  presence  of  the  court,  the  offender  may 
be  ordered  into  custody,  and  proceeded  against  at 
once. 

But  if  the  offence  he  not  committed  in  presence  of 
the  court,  it  is  usually  proceeded  against  by  an  attach- 
ment preceded  by  an  order  to  show  cause,  but  without 
an  order  to  show  cause  if  the  exigency  demands  it.1 

Whether  proceedings  will  be  had  in  the  last  class 
of  cases  for  a  contempt  whereby  the  proceedings  in  a 
particular  case  are  improperly  obstructed  or  otherwise 
interfered  with,  after  the  case  is  concluded,  is  per- 
haps not  perfectly  clear ;  but  the  better  opinion  seems 
to  be  that  they  may,  at  any  time  before  the  adjourn- 
ment of  the  court  for  the  term  at  which  the  contempt 
is  committed.2  In  a  case  apparently  to  the  contrary 3 
there  was  no  contempt,  and  the  dictum  is  not  supported 
by  the  citation  of  any  authority. 

COUNTERFEITING. 

§  94.  Counterfeiting  is  the  making  of  a  false  coin  in 
the  similitude  of  the  genuine,  with  intent  to  defraud. 
It  is  a  species  of  forgery,  and  its  distinguishing  char- 
acteristic is  that  there  must  be  some  appearance  of. 
similitude  to  the  thing  counterfeited ; 4  whereas  in 
forgery  no  such  similitude  is  requisite,5  and  no  genuine 

i  State  v.  Matthews,  37  N.  H.  450 ;  People  v.  Huckley,  24  N.  Y. 
74 ;  Whittem  v.  State,  36  Ind.  196. 

2  Reg.  v.  O'Dogherty,  5  Cox  C.  C  348 ;  Clarke's  Case,  12  Cush. 
(Mass.)  320;  Johnson  v.  Wldeman,  Dudley  (Ga.),  70. 

3  Robertson  v.  Dingley,  1  McCord  (S.C.)  Ch.  333. 

*  Rex  v.  Welsh,  1  East  P.  C.  164 ;  United  States  v.  Marigold, 
9  How.  (U.  S.)  560,  per  Daniel.  J.  ;  United  States  v.  Morrow,  4  Wash 
C.  Ct.  733 ;  Rex  v.  Varley,  2  W.  Bl.  682. 

5  See  post.  Forgery. 


COUNTERFEITING.  EAVESDROPPING.     1(Jj 

instrument  may  have  ever  existed.  Whether  there  is 
such  similitude  seems  to  be  a  question  of  fact  for  the 
jury.  Before  the  adoption  of  the  Constitution  of  the 
United  States  the  offence  was  punishable  in  the  several 
colonies  under  the  common  law ;  but  by  the  adoption 
of  that  Constitution  the  power  to  coin  money  was 
prohibited  to  the  States,  and  reserved  to  the  United 
States.  Strictly  speaking,  therefore,  there  is  no  such 
offence  as  counterfeiting  at  common  law  in  this 
country ;  but  it  is  wholly  an  offence  created  by  the 
statutes  of  the  United  States.  But  the  offence  is  pun- 
ishable as  a  cheat,  or  an  attempt  to  cheat,  by  the  States 
as  well ;  and,  in  point  of  fact,  most  of  the  States,  if 
not  all,  have  statutes  against  the  making  and  uttering 
of  counterfeit  coin.1 

Punished  at  common  law  as  a  cheat,  it  is  a  misde- 
meanor, unless  clearly  made  a  felony  by  statute.2 

DETAINER. 

See  Forcible  Entry  and  Detainer. 

EAVESDROPPING. 

§  95.  Eavesdropping  is_a  kind  of  nuisance  which 
dispunishable  at  common  law,  and  was  defined  to  be 
a  listening  under  the  eaves  or  windows  of  a  house,  for 
the  purpose  of  hearing  what  may  be  said,  and  there- 
upon to  form  slanderous  and  mischievous  tales,  to  the 
common  nuisance.3  The  offence  is  no  doubt  one  at 
common    law  in  this  country.     It  has,  indeed,  been 

1  Fox  v.  Ohio,  5  How.  (U.  S.J  410;  United  States  v.  Marigold, 
9  How.  (U.  S.)  560;  Moore  v.  Illinois,  14  How.  (U.  S.)  13;  State  v. 
McPherson,  9  Iowa,  63. 

2  Wilson  v.  State,  1  Wis.  184. 

8  1  Hawk.  P.  C.,  Table  of  Matters  to  vol.  i.,  Eavesdropper. 


106  CRIMINAL  LAW. 

expressly  so  held  ; 1  and  it  would  seem  that  any  clan- 
destine listening  to  what  may  be  said  in  a  meeting,  of 
the  grand  jury  for  instance,  required  by  law  to  be 
secret,  or,  perhaps,  which  may  lawfully,  be  held  in 
secret,  with  an  intent  to  violate  that  secrecy,  to  the 
public  injury  or  common  nuisance,2  would  constitute 
the  offence. 

'  fi  1     -  EMBEZZLEMENT.  °[  ^  A  %  OS  gXgfr  £* 

§  96.  Embezzlement,  though  not  an  offence  at  com- 
mon law,  is  now  so  universally  made  such  by  statute 
as  to  be  of  general  interest,  subject  to  special  statutory 
differences  or  limitations.  It  may  be  defined  generally 
as  the  fraudulent  appropriation  of  another's  properly 
by  one  who  has  the  lawful  possession  ;  and  is  distin- 
guished from  larceny  by  the  fact  that  in  the  latter 

I  there  is  no  possession,  but  this  is  taken.  The  statutes 
creating  the  crime  of  embezzlement,  it  has  been  well 
said,  "  have  all  been  devised  for  the  purpose  of  punish- 
ing the  fraudulent  and  felonious  appropriation  of  prop- 
erty which  had  been  intrusted  to  the  person,  by  whom 
it  was  converted  to  his  own  use  in  such  a  manner  that 

t  he  could  not  be  convicted  of  larceny  for  appropriating 
it."  If  the  property,  at  the  time  it  is  taken,  is  in  the 
possession,  actual  or  constructive,  of  the  owner,  it  is 
larceny  ;  if  it  is  not,  it  is  embezzlement.3 

§  97.  Possession  and  Custody  distinguished. —  Nice 
questions  have  arisen  as  to  what  constitutes  the  posses- 

'    i  State  v.  Williams,  2  Tenn.  108. 

2  State  v.  Pennington,  3  Head  (Tenn.),  299;  Com.  v.  Lovett,4  Pa. 
L.  J.  Rep.  5. 

8  Com.  v.  Berry,  99  Mass.  428;  Com.  v.  Hays,  14  Gray  (Mass.), 
62;  Rex  v.  Bazely,  2  Leach,  835. 


EMBEZZLEMENT.  107 

sion  which  is  violated  in  larceny,  but  which  in  embez- 
zlement is  in  the  alleged  delinquent.  Where  there  is 
no  general  relationship,  as  that  of  principal  and  agent, 
or  employer  and  employe*,  other  than  that  of  a  special 
and  particular  trust,  little  difficulty  arises.  The  party 
trusted  has  the  possession  by  delivery  for  a  pur- 
pose, and,  having  the  right  to  the  possession,  violates 
the  trust  by  fraudulently  converting  the  property  to  his 
own  use,  whereby  the  crime  of  embezzlement  becomes 
complete.  Where,  however,  this  general  relationship 
of  employer  and  employe*  exists,  it  often  becomes  a 
question  of  some  difficulty  to  determine  which  party  has 
the  possession,  —  a  difficulty  which  can  be  best  illus- 
trated by  reference  to  a  few  decided  cases.  Thus,  if  a 
teller  in  a  bank,  to  whom  the  funds  of  the  bank  are 
intrusted  during  business  hours,  for  the  purpose  of 
transacting  the  business  of  the  bank,  abstracts  the 
funds  from  the  vault  after  business  hours,  and  after 
they  have  been  withdrawn  from  his  possession  and  put 
under  the  control  of  the  cashier,1 — this  is  larceny, 
because  the  funds  were  in  the  possession  of  the  bank. 
So,  if  a  clerk  ordinarily  intrusted  with  the  sale  of 
goods,  after  the  store  is  closed,  enter  the  store  and 
take  away  the  goods.2  Money  taken  from  the  till  of 
the  master  by  a  servant  is  stolen,  because  it  is  taken 
from  the  possession  of  the  master,  the  servant  having 
only  the  custody.  Money  taken  from  a  customer  by 
the  servant,  and  put  in  his  own  pocket  before  it  reaches 
the  till,  is  embezzled,  —  the  servant  having  posses- 
sion for  delivery  to  the  master  ;  the  latter,  however, 

1  Com.  v.  Barry,  116  Mass.  1. 

2  Com.  v.  Davis,  101  Mass.  548. 


108  CRIMINAL  LAW. 

never  having  possessed  it.1  The  distinction  is  very 
fine,  though  clear,  and  seems  to  be  supported  by  the 
authorities.  In  some  States,  however,  the  peculiarities 
of  the  statute  seem  to  authorize  an  indictment  for 
embezzlement,  where  the  possession  has  reached  the 
master,  and  the  servant  holds  for  him,2  by  what  is  else- 
where generally  regarded  as  a  mere  custody  or  bare 
charge.3  The  theory  of  constructive  possession  was 
early  carried  to  a  great  length,  in  order  to  make  the 
law  of  larceny  apply  to  acts  which  as  yet  no  statute  of 
embezzlement  had  covered.  Thus,  a  watch  placed  in 
the  hands  of  a  watchmaker  to  be  cleaned  was  held  to 
be  in  the  possession  of  the  owner,  so  that  the  conver- 
sion of  it  was  larceny  in  the  watchmaker.4 

§  US.  Clerk.  Servant.  Agent.  Officer.  —  What  Con- 
stitutes the  several  relationships  of  master  and  ser- 
vant, employer  and  clerk,  principal  and  agent,  and 
the  exact  meaning  of  the  several  terms,  have  also  been 
the  subject  of  much  discussion.  There  seems  to  be 
little  or  no  distinction,  so  far  as  the  law  of  embezzle- 
ment is  concerned,  between  the  words  "  clerk "  and 
"  servant,"  though  in  popular,  parlance  they  would 
hardly  be  confounded  ;  but  between  them  and  the  word 
"  agent  "  there  is  a  distinction  made.  Just  where  the 
line  is  drawn,  however,  as  between  the  one  and  the  other, 
is  not  very  well  defined.    Though,  in  general,  the  idea  of 

i  Rex  v.  Murray,  5  C.  &  P.  145;  Reg.  v.  Watt,  4  Cox  C.  C.  336  ; 
Reg.  v.  Hawkins,  1  Den.  C.  C.  684;  Com.  v.  Berry,  90  Mass.  430; 
People  v.  Hennessy,  15  Wend.  (N.  Y.)  147:  Cora.  v.  King,  9  Cush. 
(Mass.)  284;  United  States  v.  Clew,  4  Wash.  C.  Ct.  701. 

2  Lowenthal  v.  State,  32  Ala.  589;  People  v.  Hennessy,  15  Wend. 
(N.Y.)  147. 

a  Hawk.  P.  C.  bk.  1,  c.  33,  §  6. 

«  Hawk.  P.  C.  bk.  1,  c.  S3,  §  5,  n.  1. 


EMBEZZLEMENT.  109 

continuity  of  service  underlies  the  relation  of  clerkship 
or  service,  yet  this  is  by  no  means  necessary ;  and  an 
agency  may  be  general  and  continuous  as  well ;  so 
that  such  continuity  is  not  decisive  as  a  criterion, 
though  doubtless  of  some  importance.  In  fact,  con- 
tinuity is  not  essential  to  the  quality  of  servant  or  clerk.1 
Perhaps  the  idea  of  control  is  more  distinctively  charac- 
teristic of  the  relationship  of  master  and  servant  than 
in  that  of  principal  and  agent.2  Yet  even  here  the 
agency  may  be  such  as  to  give  the  principal  as  full 
control  of  his  agent  as  if  he  were  a  servant.  An  agent 
is  always  acting  for  his  principal,  with  authority  to 
bind  him  to  the  extent  of  his  agency  ;  while  a  servant, 
though  in  a  certain  sense  acting  for  his  master,  has 
not  the  representative  character  of  an  agent,  and  has 
no  authority,  as  servant,  to  bind  his  master.  His 
negligence,  however,  may  be  imputed  to  the  master. 
Personal  presence  and  supervision  also  belong  more 
especially  to  the  idea  of  mastership.3  Still  it  is  only 
the  circumstances  of  each  particular  case  which  will 
determine  under  which  category  a  particular  person 
comes ;  and  no  better  aid,  in  this  particular,  can  be 
given  than  by  a  reference  to  cases  which  involve  special 
circumstances.  Thus,  although  an  apprentice  is  not 
technically  a  servant,  he  may  be,  under  special  cir- 
cumstances, one  within  the  meaning  of  the  statute 
of  embezzlement.4  But  a  general  agent  of  an  insur- 
ance company  resident  abroad  is  not  a  servant ; 6  and 

1  Reg.  v.  Negus,  L.  R.  2  C.  C.  34. 

2  Reg.  v.  Bowers,  L.  R.  1  C.  C.  41. 
8  Reg.  v.  Squire,  2  R.  &  R.  349. 

*  Rex  v.  Mellish,  R.  &  R.  80. 
6  Reg.  v.  May,  L.  &  C.  13. 


110  CRIMINAL  LAW. 

though  a  person  employed  to  sell  goods  on  commis- 
sion and  collect  the  purchase-money  is  not,1  a  commer- 
cial traveller,  who  does  not  live  with  his  employers,  or 
transact  business  at  their  store,  may  be,  a  clerk ; 2 
while  one  who  receives  material  to  be  wrought  upon  in 
his  own  shop,  and  to  be  returned  to  the  owner  in  the 
shape  of  manufactured  goods,  is  neither  a  clerk,  servant, 
nor  agent.3  Nor  is  a  constable  who  receives  a  warrant 
to  collect,  with  instructions  to  have  it  served  if  not  paid. 
He  is  rather  a  public  officer.4  So  the  keeper  of  a  county 
poor-house  stands  rather  in  the  relation  of  a  public 
officer  than  of  servant  to  the  superintendent  who  ap- 
points him.5 

§  99.  Agency.  —  But  not  all  agencies  come  within 
the  purview  of  this  statute. 

One  whose  business  is  that  of  a  general  agent  for  di- 
vers persons,  and  from  its  very  nature  carries  with  it  the 
implied  permission  to  treat  the  moneys  received  as  a  gen- 
eral fund,  out  of  which  all  obligations  are  to  be  paid,  such 
fund  to  be  used  and  denominated  as  his  own,  is  not  held 
to  be  an  agent  within  the  meaning  of  the  statute  of  em- 
bezzlement. Thus,  an  auctioneer,  who  is  the  agent  of 
the  buyer  and  the  seller  for  effecting  the  sale,  would 
find  it  wholly  impracticable  to  carry  on  his  business  if 
he  were  obliged  to  keep  separate  the  funds  of  each  par- 
ticular seller.6  So  a  general  collector  of  accounts  is  not 
such  an  agent  of  those  for  whom  he  collects,7  nor  is  a 

1  Reg.  v.  Bowers,  ubi  supra. 

2  Rex  v.  Carr,  R.  &  R.  198. 

8  Com.  v.  Young,  9  Gray  (Mass.),  6. 
*  People  v.  Allen,  5  Den.  (N.  Y.)  76. 
6  Coats  v.  People,  22  N.  Y.  245. 
6  Com.  v.  Stearns,  2  Met.  (Mass.)  343. 
»  Com.  v.  Libbey,  11  Met.  (Mass.)  64. 


EMBEZZLEMENT.  Ill 

general  insurance  agent  receiving  premiums  for  divers 
companies.1  Nor  would  a  general  commission-merchant 
be  ;  nor  any  person  who,  from  the  nature  of  his  busi- 
ness or  otherwise,  has  authority  to  confound  and  de- 
posit in  one  account,  as  his  own,  funds  received  from 
divers  sources.2 

The  word  "officer,"  as  used  in  statutes  of  embezzle- 
ment, has  been  held  to  apply  to  the  sheriff  of  a  county,3 
the  directors  of  a  bank,4  and  the  treasurers  of  railroads 
and  other  bodies  politic.6  Perhaps  "  servant "  would 
aptly  describe  such  persons,  if  the  word  "  officer " 
was  not  in  the  statute.6 

§  100.  Employment.  —  Embezzlement,  as  we  have 
seen,  is  substantially  a  breach  of  trust ;  and  is  the  pe- 
culiar crime  of  those  who  are  employed  or  trusted  by 
others.  Many  of  the  statutes  limit  the  crime  to  cases 
where  the  fraudulent  commission  is  by  one  who  gets 
possession  of  the  money  or  property  "  by  virtue  of  his 
employment."  Under  this  limitation  it  has  been  held, 
by  a  very  strict  construction,  that  if  a  servant  employed 
to  sell  goods  at  a  fixed  price,  sells  them  at  a  less  price, 
and  embezzles  the  money,  —  that  money  not  being  the 
master's,  but  the  purchaser  still  remaining  bound  for  the 
full  fixed  price,  —  the  servant  does  not  come  in  posses- 
sion of  his  master's  money  by  virtue  of  his  employment." 

1  People  v.  Howe,  2  N.  Y.  Sup.  Ct.  n.  s.  383. 

2  Com.  v.  Foster,  107  Mass.  221.  Otherwise  by  statute  in  Illinois, 
as  to  commission-merchants,  warehousemen,  &c.  Wright  v.  People, 
61  111.  382. 

3  State  v.  Brooks,  42  Tex.  62. 

«  Com.  i\  Wyman,  8  Mot.  (Mass.)  247. 

5  Com.  v.  Tuckerman,  10  Gray  (Mass.)  173. 

e  Rex  t>.  Squin-,  K.  &  K.  S49  ;  Reg.  v.  Welch,  2  C.  &  K.  206. 

»  Reg.  v.  Aston,  2C.i  K.  413  ;  Hex  v.  Suowley,  4  C.  &  P.  390. 


112  CRIMINAL  LAW. 

So,  when  a  servant  receives  money  for  the  use  of  his 
master's  property,  but  in  a  manner  contrary  to  his  right 
or  authority,  and  in  violation  of  his  duty,  it  is  said  not 
to  be  his  master's  money,  but  rather  his.1  But  this 
strictness  of  interpretation  has  not  been  followed  in 
this  country,  where  it  has  been  held  that  if  an  agent 
obtains  money  in  a  manner  not  authorized,  and  in  vio- 
lation of  his  duty,  yet  under  the  guise  of  his  agency, 
he  gets  it  by  virtue  of  his  employment ; 2  and  other 
English  cases  seem  now  in  accord  with  this  view.3 

§  101.  Subject-matter  of  Embezzlement.  —  It  is  gen- 
erally provided  that  all  matters  which  may  be  subjects 
of  larceny  may  also  be  subjects  of  embezzlement. 
Some  statutes,  however,  are  not  so  comprehensive. 
Save  these  differences,  which  cannot  here  be  particu- 
larized, it  may  be  said  that  whatever  may  be  stolen 
may  be  embezzled ;  and  what  may  be  stolen  will  be 
considered  under  the  title  Larceny. 

§  102.  intent  to  defraud  is  an  essential  element  of 
the  case.  And  if  the  money  is  taken  under  a  claim  of 
right,  as  where  a  cashier  of  a  mercantile  establishment 
intercepts  funds  of  his  employers,  and  without  their 
knowledge  and  against  their  wish  appropriates  them 
to  the  payment  of  his  salary,  by  charging  them  to  his 
account,  this  is  no  embezzlement.4 

i  Reg.  v.  Harris,  6  Cox  C.  C.  363. 
2  Ex  parte  Hedley,  31  Cal.  108. 

s  Reg.  v.  Beechey,  R.  &  R.  319 ;  Rex  v.  Salisbury,  6  C  &  P.  155 ; 
Reg.  v.  Wilson,  9  C  &  P.  27. 
*  Ross  v.  Innis,  35  111.  487. 


EMBRACERY.    ENGROSSING.  113 

EMBRACERY. 

§  103.  Embracery  is  an  offence  analogous  to  main- 
tenance, and,  in  some  aspects,  to  bribery,  and  consists  in 
an  attempt,  by  corrupt  means,  to  induce  a  juror  to  give  a 
partial  verdict.  Any  form  of  tampering  with  a  jury, 
whether  successful  or  not  is  immaterial,  constitutes  the 
crime.1  The  means  most  commonly  resorted  to  are 
promises,  entertainments,  presents,  and  the  like.  But 
any  means  calculated  and  intended  to  cause  a  juryman  to 
swerve  from  his  duty,  if  used,  will  make  the  person  using 
them  for  that  purpose  indictable  at  common  law.  As 
the  crime  is  in  itself  an  attempt,  it  is  complete  whether 
successful  or  not  in  its  purpose,  whether  the  verdict 
be  just  or  unjust,  and  even  if  there  be  no  verdict.2  A 
juror  may  be  guilty  of  embracery,  by  the  use  of  corrupt 
and  unlawful  methods  of  influencing  his  fellows,  or 
of  obtaining  a  position  on  the  jury  with  intent  to  aid 
either  party.3 

ENGROSSING.       FORESTALLING.      REGRATING. 

§  104.  These  were  severally  offences  at  the  common 
law,  and  describe  different  methods  of  speculation  and 
artificial  enhancement  or  depression  of  the  prices  of 
merchandise,  by  resort  to  false  news,  extraordinary 
combinations,  and  other  indirect  means  outside  of  the 
regular  action  of  the  laws  of  trade.4  They  were  based 
upon  early  English  statutes,  and  notably  5  and  6  Ed- 
ward VI.  c.  14,  which  are  cited  by  Hawkins,6  and  of 

1  Hawk.  P.  C.  bk.  1,  c.  85. 

2  State  v.  Sales,  2  Nev.  269;  Gibbs  v.  Dewey,  6  Cow.  (N.  Y.)  603 
8  Rex  v.  Opie  et  al.,  1  Saun.l.  301. 

*  1  Hawk.  P.  C.  c.  80. 

*  Vbi  tupia. 

8 


114  CRIMINAL  LAW. 

which  a  very  good  summary  may  be  found  in  Bishop.1 
These  statutes  are  now  repealed  in  England,  and  the 
offences  abolished.  They  were  undoubtedly  a  part  of 
the  common  law  brought  to  this  country ;  but  seem, 
nevertheless,  not  to  have  been  enforced, —  perhaps  on 
account  of  the  greater  freedom  of  trade,  and  the  infre- 
quency  of  the  occurrence  of  the  evils  connected  with 
them  in  a  new  country.  There  is  no  reason  in  prin- 
ciple, however,  why  they  should  not  be  applicable  to 
many  of  the  practices  of  the  stock  and  other  markets 
of  the  present  day.2 

EXTORTION. 

§  105.  Extortion  is  the  demanding  and  taking  of  an 
illegal  fee,  under  color  of  office,  by  a  person  clothed 
by  the  law  with  official  duties  and  privileges.3  The 
fee  is  illegal,  if  demanded  and  taken  before  it  is  due,  or 
if  it  be  a  greater  amount  than  the  law  allows,  and,  of 
course,  if  not  allowed  at  all  by  law.  Thus,  it  is  extor- 
tion for  a  justice  of  the  peace  to  exact  costs  where  they 
are  not  properly  taxable,  or  from  the  party  to  whom 
they  are  not  taxable;4  or  for  a  jailer  to  obtain 
money  of  his  prisoner,  by  color  of  his  office;5  or 
for  a  ferry-man  6  or  miller  7  to  collect  tolls  not  war- 

i  1  Cr.  Law,  §  618  e<  seq. 

2  City  of  Louisville  v.  Roupe,  6  B.  Mon.  (Ky.)  591 ;  7  Dane,  Abr. 
89.  For  the  learning  on  this  subject,  in  addition  to  the  authori- 
ties already  cited,  see  Rex  v.  Waddington,  1  East,  143  ;  Rex  v.  Webb, 
14  East,  400  ;  Pratt  v.  Hutchinson,  15  East,  511 ;  2  Chitty  Cr.  Law, 
627  ;  Rex  v.  Rushy,  Peake,  Add.  Cas.  180. 

3  Ming  v.  Truett,  Mont.  323  ;  Rex  v.  Baines,  6  Mod.  192. 

4  People  v.  Maley,  6  Cow.  (N.  Y.)  661;  Respublica  v.  Hannum; 
1  Yeates  (Pa.)  71. 

6  Rex  v.  Broughton,  Trem.  P.  C.  111. 
8  Rex  v.  Roherts,  4  Mod.  101. 

7  Rex  v.  Iiurdett,  1  Ld.  Raym.  148. 


EXTORTION.  H5 

ranted  by  custom ;  or  for  a  county  treasurer  to  exact 
fees  for  acts  required  in  the  collection  of  taxes, 
but  which  had  not  been  done;1  or  for  a  coroner2  or 
sheriff  to  refuse  to  do  their  official  duty  unless  their 
fees  are  prepaid;3  or  to  demand  and  receive  fees  where 
none  are  by  law  demandable.4  So  it  is  extortion  for  an 
officer  to  avail  himself  of  his  official  position  to  force 
others,  by  indirect  means,  to  contribute  to  his  pecuniary 
advantage,  to  an  amount  and  in  a  manner  not  author- 
ized by  law, —  as,  for  instance,  for  a  sheriff  to  receive 
a  consideration  from  A.  for  accepting  A.  as  bail  for  C, 
whom  he  has  arrested.5  That  the  illegal  fee  is  in  the 
form  of  a  present,  or  other  valuable  thing  than  money, 
is  immaterial  ;6  unless  the  gift  be  voluntary,7  in  which 
case  there  is  no  offence  committed.  By  a  very  strict 
construction,  the  taking  a  promissory  note  for  illegal 
fees  is  held  not  to  constitute  the  offence,  as  the  note  is 
void,  cannot  be  enforced,  and  is  therefore  of  no  value.8 
And  the  taking  must  be  with  a  wrong  intent,9  and  not 
through  mistake  of  fact,10  or  of  law.11 

1  State  v.  Burton,  3  Ind.  93. 

-  Rex  v.  Harrison,  1  East  P.  C.  382. 

3  Hescott's  Case,  1  Salic.  330  ;  Cora.  v.  Bagley,  7  Pick.  (Mass.)  279  ; 
State  v.  Varel,  17  Mo.  416,  144  ;  State  v.  Maires,  4  Vrooni  (N.  J.),  142. 

4  Simmons  v.  Kelley,  33  Pa.  St.  190;  Com.  v.  Mitchell,  3  Bush 
(Ky.),26. 

5  Statesbery  v.  Smith,  2  Burr.  924 ;  Rex  a.  Higgins,  4  C.  &  P.  247 ; 
Rex  v.  Burdett,  1  Ld.  Raym.  148;  People  v.  Calhoun,  3  Wend.  (N.  Y.) 
420 ;  Rex  v.  Loggen,  1  Stra.  73.  «  Rex  v.  Eyres,  1  Sid.  307. 

7  Com.  v.  Dennie,  Th.  Cr.  Cas.  (Mass.)  165. 

8  Cora.  v.  Cony,  2  Mass.  523.  But  see  Empson  v.  Bathurst,  Hut. 
52;  Com.  v.  Pearce,  16  Mass.  91. 

9  Respublica  v.  Hannum,  1  Yeates  (Pa.),  71 ;  Cleaveland  v.  State, 
84  Ala.  254  ;  State  v.  Stotts,  5  Blackf.  (Ind.)  460. 

10  Bowman  v.  Blythe,  7  E.  &  B.  26. 

11  State  v.  Cutter,  36  N.  J.  125;  People  v.  Whaley,  6  Cow.  (N,  Y.) 
661. 


■o 


116  CRIMINAL  LAW. 

FALSE    IMPRISONMENT.  *-?0~xWl 

§  106.    False    imprisonment,    which    Consists    in    thev'-icaW 

unlawful  restraint  of  the  liberty  of  a  person,  is  an/0?*' 
ice  r-zf.  indictable  offence  at  common  law.1  No  actual  force  is 
necessary.  The  force  of  fraud  or  fear  is  sufficient. 
Thus,  to  stop  a  person  on  the  highway  and  prevent  him 
from  proceeding  by  threats,  constitutes  the  offence;2 
though  it  has  been  held  in  England,  by  a  divided  court, 
'  ^  "that  the  mere  prevention  from  going  in  one  direction, 
while  there  remained  liberty  of  going  in  any  other,  is 
no  imprisonment.3  So  is  the  unlawful  confinement  of 
a  child  by  its  parents  ; 4  and,  no  doubt,  of  a  prisoner 
by  a  jailer. 

Most  of  the  States  have  now  statutes  upon  the  sub- 
ject under  which  prosecutions  are  had.5 

0  "b-U-w  •, 

FALSE    PRETENCES.  ,^7, 

§  107.  Mere  verbal  lying,  whereby  one  is  defrauded 
of  his  property,  without  the  aid  of  some  visible  token, 
1  device,  or  practice, —  as  when  one  falsely  pretends  that 
he  has  been  sent  for  money,6  or  falsely  states  that  goods 
sold  exceed  the  amount  actually  delivered,7  or  falsely 
asserts  his  ability  to  pay  for  goods  he  is  about  to  buy,8 

f.    l  Com.  v.  Nickerson,  5  Allen  (Mass.),  510;  3  Chitty  Cr.  Law,  835; 
Redfield  v.  State,  24  Tex.  133  ;  Baden  v.  State,  13  Fla.  675. 

2  Blower  v.  State,  3  Sneed  (Terra.),  66  ;  Searls  v.  Viats,  2  T.  4  C. 
(N.  Y.  S.  C.)  224;  Moses  v.  Dubois,  Dud.  (Ga.)  209. 

3  Bird  v.  Jones,  7  Q.  B.  742.  ,  .     .  . 
«  Fletcher  ,.  People,  52  111.  395.                        j  'Zj^SCSt ' 

6  See  Abduction,  Kidnapping.  Lm^ua,  ivw^  V<  uVu.    \>_^  ^*.  « 
a  Reg.  v.  Jones,  1  Salk.  379.  ^TSSjft        *  s   0 

7  Rex  v.  Osborn,  3  Burr.  1697. 

8  Com.  v.  Warren,  6  Mass.  72.  **  °lj^  *W\> 

'+«*C*  ..».     ...    . 


FALSE  PRETENCES.  117 

—  was  not  formerly  an  indictable  offence.  But  aa 
many  frauds  were  practised  in  this  way  which  were 
mere  private  frauds,  and  which  the  court,  with  every 
disposition  to  punish,  could  not  stretch  the  law  of  lar- 
ceny to  cover,  it  was  at  length  enacted :  that  designedly 
obtaining  money,  goods,  wares,  or  merchandises,  by 
false  pretenceSjWith  intent  to  defraud  any  person,  should 
be  indictable.  The  provisions  of  this  statute  have 
been  so  generally  adopted  in  this  country,  that,  if  it 
cannot  be  said  to  be  strictly  part  of  the  common  law, 
it  may  be  considered  as  the  general  law  of  the  land. 
And  though  the  terms  in  which  the  enactment  is  made 
may  slightly  differ  in  the  different  States,  yet  they  are 
so  generally  similar  that  in  most  cases  the  decisions  in 
one  State  will  serve  to  illustrate  and  explain  the  stat- 
utes in  others.  And  as  the  words  of  the  statute 
cover  cheats  as  well  by  words  as  by  acts  and  devices, 
indictments  under  the  statute  are  now  usually  resorted 
to,  unless  special  circumstances  or  special  provisions 
compel  a  resort  to  the  old  form  of  pleading.  Under 
the  statutes,  in  order  to  constitute  the  offence,  it  must 
appear  (1)  that  the  pretence  is  false  ;  (2)  that  there  was 
an  intent  to  defraud  ;  (3)  that  an  actual  fraud  was  com- 
mitted ;  (4)  that  the  false  pretences  were  made  for  the 
purpose  of  perpetrating  the  fraud  ;  (5)  and  that  the 
fraud  was  accomplished  by  means  of  the  false  pretences.2 
§108.  (1.)  Pretence  must  be  False.  —  A  false  pretence 
is  a  false  statement  about  some  past  or  existing  fact, 
in  contradistinction  from  a  promise,  an  opinion,  or  a 
statement  about  an  event  that  is  to  take  place.  Thus, 
a  pretence  that  one  has  a  warrant  to  arrest,  if  false,  is 

i  30  Geo.  II.  c.  24. 

2  Com.  v.  Drew,  l'J  Pick.  (Mass.)  179. 


118  CRIMINAL  LAW. 

within  the  statute,1  while  a  pretence  that  his  goods 
"  are  about  to  be  attached  "  is  not.2  Nor  is  a  statement 
that  something  could,  would,  or  should  be  done.3 

The  shades  of  distinction  are  sometimes  very  nice. 
Thus,  "  I  can  give  you  employment,"  is  no  pretence;4 
but,  "1  have  a  situation  for  you  in  view,"  is.6  And 
perhaps  the  false  statement  of  an  existing  desire  or 
intention,  to  accomplish  some  present  purpose,  may  be 
a  false  pretence.6  The  belief  by  the  party  making  the 
statement  that  it  is  false  is  of  no  moment,  if  it  is  in 
fact  true.7  On  the  contrary,  if  it  be  false,  yet  he  be- 
lieves it  to  be  true,  this  is  not  within  the  statute,  as  in 
such  case  there  is  no  intent  to  defraud.  But  opinions 
as  to  quality,  value,  quantity,  amount,  and  the  like, 
are  held  not  to  be  false  pretences.8  The  fact,  how- 
ever, that  one  does  or  does  not  hold  an  opinion  is  as  much 
an  existing  fact  as  any  other  ;  and  if  it  is  falsely  stated 
with  intent  to  defraud,  and  does  defraud,  it  is  in  every 
particular  within  both  the  letter  and  spirit  of  the  law.9 
It  may  be  difficult  to  prove  that  an  opinion  is  known  by 
the  person  who  asserts  it  to  be  false,  and  that  it  was 

i  Com.  v.  Henry,  10  Harris  (Pa.),  253. 

2  Burrow  v.  State,  7  Eng.  (Ark.)  65. 

8  State  v.  Evers,  49  Mo.  542  ;  Johnson  v.  State,  41  Tex.  65  ;  Ryan 
v.  State,  45  Ga.  128;  State  v.  Magee,  11  Ind.  154. 

*  Ranney  v.  People,  22  N.  Y.  413. 

6  Com.  v.  Parker,  Thatcher  Cr.  Cas.  (Mass.)  124. 

6  State  v.  Rowley,  12  Conn.  131. 
.     7  Rex  v.  Spencer,  3  C.  &  P.  420. 

8  Reg.  v.  Williamson,  11  Cox  C.  C.  328  ;  Reg.  v.  Oates,  6  Cox  C.  C. 
540 ;  Reg.  v.  Bryan,  7  Cox  C.  C.  589 ;  Reg.  v.  Goss,  8  Cox  C.  C.  208 ; 
Scott  v.  People,  62  Barb.  (N.  Y.)  62;  Reese  v.  Wyman,  9  Ga.  430; 
State  v.  Estes,  46  Me.  160. 

9  State  v.  Tomlin,  5  Dutch.  (N.  J.)  13;  Reg.  v.  Ardley,  Law  Rep. 
1  C  C.  301. 


FALSE  PRETENCES.  119 

falsely  asserted  with  intent  to  defraud.  But  this  is  a 
question  of  procedure. 

The  pretence  must  be  false  at  the  time  when  the  prop- 
erty is  obtained.  If  it  be  false  when  made,  hut  becomes 
true  at  the  time  when  the  property  is  obtained, —  as 
where  one  states  "  that  he  has  bought  cattle,  when  in 
fact  he  had  not  at  the  time  of  the  statement,  but  had 
when  he  obtained  the  money,  —  there  is  no  offence.1 
Vice  versa,  however,  if  the  statement  be  true  when 
made,  but  becomes  false  at  the  time  of  the  obtaining 
the  property,  —  as  if,  in  the  case  supposed,  the  cattle 
had  been  bought,  but  had  been  sold  at  the  time  when 
the  property  was  obtained,  —  then  the  offence  would 
no  doubt  be  committed. 

§  109.  Subject-matter.  —  Any  lie  about  any  subject- 
matter,  by  word  or  deed, —  as  by  showing  a  badge,  or 
wearing  a  uniform,  or  presenting  a  check  or  sample  or 
trade-mark,  or  by  a  look  or  a  gesture, —  subject  to  the 
foregoing  limitations,  is  a  false  pretence.  Thus,  if  one 
falsely  assert  as  an  existing  fact  that  he  possesses  super- 
natural power,2  or  that  he  has  made  a  bet,3  or  that  he  is 
pecuniarily  responsible,4  or  irresponsible,5  or  is  a  certain 
person,6  or  that  he  is  agent  for  or  represents  a  certain 
person,7  or  belongs  to  a  certain  community  8  or  military 
organization,9  or  is  married,10  or  unmarried,11  or  engaged 

i  Snyder,  In  re,  17  Kan.  542. 

2  Reg.  v.  Giles,  10  Cox  C.  C.  44;  Reg.  v.  Bunce,  1  F.  &  F.  523. 

8  Young  v.  Rex,  8  T.  R.  98. 

*  State  v.  Pryor,  30  Ind.  350. 

5  State  v.  Tomlin,  5  Dutch.  (N.  J.)  13. 

6  Com.  v.  Wilgus,  4  Pick.  (Mass.)  177. 

1  People  v.  Johnson,  12  Johns.  (N.  Y.)  292. 

8  Rex  v.  Barnard,  7  C.  &  P.  784. 

9  Hamilton  v.  Reg.,  9  Q  B.  271  ;  Thomas  v.  People,  34  X.  Y.  351 
to  Reg.  r.  Davis,  11  Cox  C.  C  181. 

u  Reg.  v.  Copeland,  C.  &  M.  616. 


120  CRIMINAL  LAW. 

in  a  certain  business,1  or  that  a  horse  which  he  offers 
to  sell  is  sound,2  or  that  a  flock  of  sheep  is  free  from  dis- 
ease,3 or  any  other  lie  about  any  matter,  where  money  is 
fraudulently  obtained, —  the  offence  is  complete.  "  Why 
should  we  not  hold  that  a  mere  lie  about  any  existing 
fact,  told  for  a  fraudulent  purpose,  should  be  a  false 
pretence?"  4 

§  110.  (2.)  intent  to  defraud.  —  If  the  money  be  ob- 
tained by  the  false  pretence,  the  intent  being  to  obtain 
it  thereby,  as  where  one  obtains  a  loan  upon  a  forged 
certificate  of  stock  in  a  railroad  company,  the  offence 
is  complete,  though  the  party  obtaining  the  money 
fully  intended  and  believed  he  should  be  able  to  pay 
the  note  at  maturity  and  redeem  the  stock.5  If  the 
object  in  getting  possession  of  the  property  be  not  to 
defraud,  but  to  compel  payment  of  a  debt,  —  as  when 
a  servant  gets  possession  of  the  goods  of  his  master's 
debtor,  to  enable  his  master  to  collect  his  debt, —  the 
offence  is  not  committed.6 

§  111.  (3  and  4.)  Actual  Perpetration  of  the  Fraud.  — 
If  the  fraud  be  not  actually  accomplished  by  obtaining 
the  goods,  money,  &c,  as  the  charge  may  be,  it  is  but  an 
attempt,  and  only  indictable  as  such.  And  if  a  person 
is  merely  induced  by  the  false  pretence  to  pay  a  debt 
which  he  previously  owed,  or  to  indorse  a  note  which 
lie  had  agreed  to  indorse,  it  is  no  offence  under  the 
statute.7     So  it  has  been  held  in  New  York  8  that  part- 

i  People  v.  Dalton,  2  Wh.  Cr.  Cas.  (N.  Y.)  161. 
'-'  State  v.  Stanley,  64  Me.  157. 
3  People  v.  Crissie,  4  Dan.  (N.  Y.)  525. 
«  Alderson,  B.,  Reg.  v.  Woolley,  Den.  C.  C.  65. 
5  Com.  v.  Coe,  115  Mass.  481 ;  State  v.  Thatcher,  35  N.  J.  445. 
e  Rex  v.  Williams,  7  C.  &  P.  354  ;  post,  §  111. 
i  People  v.  Thomas,  3  Hill  (N.  Y.),  169;  ante,  §  110;  People  v. 
Getchell,  6  Mich.  496.  8  People  u.  Clough,  17  Wend.  351. 


FALSE   PRETENCES.  121 

ing  with  money  for  charitable  purposes  is  not  within 
the  statute.  But  this  case  rests  upon  the  supposed 
list  raining  force  of  the  preamble  of  the  statute;  and 
elsewhere  the  law  has  been  held  to  be  the  reverse.1 
So  the  obtaining  a  promissory  note  from  a  minor 
has  been  held  to  be  no  actual  fraud,  as  the  minor  is 
not  bound  to  pay.2  But  it  may  well  be  doubted  if  the 
paper  upon  which  the  note  is  written  is  not  "  goods," 
within  the  meaning  of  the  statute.3 

From  the  rule  that  the  false  pretence  must  be  the 
inducement  for  parting  with  the  property,  it  follows 
that  after  possession  and  property  —  though  under 
a  voidable  title  —  is  obtained,  false  representations, 
whereby  the  owner  is  induced  to  permit  the  property 
to  be  retained,  does  not  amount  to  the  offence,  —  as 
where  a  vendor,  suspecting  the  solvency  of  the  vendee, 
proposes  to  retake  his  goods,  but  is  induced  by  false 
pretences  to  abandon  his  purpose ;  though  it  might  be 
otherwise  if  the  right  to  the  property  had  not  passed.4 

§  112.  Fraud  in  both  Parties.  —  When  ina  trans- 
action each  party  makes  false  pretences,  and  each  de- 
frauds the  other,  —  as  when  two  parties  exchange 
watches,  each  falsely  pretending  that  his  watch  is  gold 
of  a  certain  fineness,  —  each  is  indictable,  and  neither 
can  defend  on  the  ground  of  the  other's  deceit.5  It  is, 
however,  held  in  New  York  that  if  the  money  parted 
with  is  for  the  purpose  of  inducing  the  false  pretender 

i  Reg.  v.  Jones,  1  Den.  C.  C.  551  ;  Reg.  v.  Hensler  11  Ccx  C.  C 
570 ;  Com.  v.  Whiteomb,  107  Mass.  486.  So  in  New  York  now  by 
statute  1851,  e.  144,  §  1. 

2  Com.  o.  Lancaster,  Th.  Cr.  Cas.  (Mass.)  428. 

8  Reg.  v.  Danger,  7  Cox  C.  C.  303. 

*  People  v.  Haynes,  14  Wend.  (N.  Y.)  546. 

6  Com.  v.  Merrill,  8  Cusli.  (Mass.)  571. 


122  CRIMINAL  LAW. 

to  violate  the  law,  as,  for  instance,  a  pretended  officer 
not  to  serve  a  warrant,  the  indictment  will  not  lie.1 
But  this  case  proceeds  upon  the  ground  that  the  object 
of  the  statute  is  to  protect  the  honest,  while  the  better 
view  is  that  the  law  is  for  the  protection  of  all,  by  the 
punishment  of  rogues.  The  application  of  the  principle 
that  one  man  may  escape  punishment  of  crime  because 
the  person  upon  whom  he  committed  it  was  guilty  of 
the  same  or  a  different  crime,  would  paralyze  the  law. 
The  true  rule  is  to  punish  each  for  the  crime  he  com- 
mits. 

§  113.  Delivery  with  Knowledge.  Ordinary  Prudence. 
—  If  the  party  who  delivers  the  goods  is  not  deceived  by 
the  false  pretence,  but  is  aware  of  its  falsity,  the  offence 
is  not  committed,  though  there  would  be  an  attempt;2 
and  so,  perhaps,  if  he  has  the  means  of  knowledge, — 
as  when  one  falsely  represents  that  on  a  former  occasion 
he  did  not  receive  the  right  change,  and  thereby  ob- 
tained additional  change.3  Yet  if  the  change  thus 
obtained  is  through  actual  deceit,  operating  on  the  mind 
of  the  party  who  delivers,  it  is  within  both  the  letter 
and  the  spirit  of  the  law.4 

The  false  pretence  it  was  once  generally,  and  is  now 
sometimes,  said  must  be  of  such  a  character  as  is  cal- 
culated to  deceive  a  man  of  ordinary  intelligence  and 
caution.5     One  man,  it  has  been  intimated   by  high 

1  McCord  v.  People,  46  N.  Y.  470,  Peckham,  J.,  dissenting,  with 
whom  is  the  weight  hoth  of  reason  and  authority ;  Com.  v.  Henry, 
10  Har.  (Pa.)  253;  2  Bishop   Cr.  Law,  §  469. 

2  Reg.  v.  Mills,  D.  &  B.  205 ;  State  v.  Young,  76  N.  C.  258. 

»  Com.  v.  Norton,  11  Allen  (Mass.),  266;  Com.  v.  Drew,  19  Pick 
(Mass.)  179. 

*  Reg.  v.  Jessop,  D.  &  B.  442;  2  Bishop   Cr.  Law,  §  432  a. 
5  Jones  v.  State,  50  Ind.  473. 


FALSE   PRETENCES.  123 

authority,  is  not  to  be  indicted  because  another  man 
has  been  a  fool.1     But  in  the  practical  application  of 

the  -ule,  the  courts  seem  to  have  been  guided  in 
termit.ing  whether  the  false  pretence  was  an  indictable 
one,  more  by  the  fact  that  the  deceit  and  fraud  were 
intended  and  actually  accomplished,  than  that  they 
were  calculated  generally  to  deceive.  And  the  doctiin  j 
which  formerly  obtained,  that  if  the  party  from  whom 
the  goods  were  obtained  is  negligent,  or  fails  in  ordin 
prudence,  the  offence  is  not  committed,  seems  now  I  > 
be  generally  discarded,  as  a  doctrine  which  puts  the 
weak-minded  and  the  incautious  at  the  mercy  of  rogues. 
The  tendency  of  the  more  recent  authorities  is  to  estab- 
lish the  rule  that,  whatever  the  pretence,  if  it  be  in- 
tended to  defraud,  and  actually  does  defraud,  the  of- 
fence is  committed.  The  shallowness  of  the  pretence, 
and  its  obvious  falsity,  may  be  evidence  that  the  party 
must  have  had  knowledge,  and  so  was  not  deceived 
or  defrauded  by  the  pretence ;  but  it  is  only  evidence 
upon  the  question  whether  in  fact  the  person  parting 
with  his  property  was  deceived.  If,  in  fact,  the  party 
is  induced  by  the  pretence  to  part  with  his  money,  —  if 
the  pretence  takes  effect,  —  then  the  money  is  obtained 
by  it.  Thus,  it  was  held  that  a  pretence  that  a  one- 
pound  note,  reading  so  upon  its  face,  was  a  five-pound 
note,  to  a  party  who  could  read,  was  a  false  pretence.2 
It  was  also  held  an  indictable  false  pretence  to  represent 
to  a  person  who  could  not  read,  as  a  Bank  of  England 
note,  the  following  instrument :  — 

i  Per  Lord  Holt,  Rex  v.  Jones,  2  Ld.  Raym.  1013. 
3  Reg.  v.  Jessop,  D.  &  B.  C.  C.  442. 


124  CRIMINAL  LAW. 

;'  £5.~\  Bank  op  Elegance.  [No.  230. 

"I  promise  to  pay  on  demand  the  sum  of  five 
Rounds,  if  I  do  not  sell  articles  cheaper  than  anybody 
in  the  whole  universe. 

"  Five.  For  Myself  &  Co. 

"  Jan.  1,  1850.  M.  Carroll."  1 

§  114.  (5.)  The  Fraudulent  Pretence  as  the  Means.  — 
The  false  pretence  must  haye  been  the  means  whereby 
the  defrauded  party  was  induced  to  part  with  his  prop- 
erty. It  is  not  meant  by  this  that  the  false  pretence 
should  have  been  the  sole  inducement  which  moved 
the  promoter.  It  is  enough  if,  co-operating  with 
other  inducements,  the  fraud  would  not  have  been  ac- 
complished but  for  the  false  pretence.2  So  when  prop- 
erty is  sold  with  a  written  covenant  of  title  and  against 
incumbrances,  and  at  the  same  time  it  is  also  fraudu- 
lently represented  verbally  that  the  property  is  unin- 
cumbered, the  offence  is  committed  if  the  verbal 
representation  was  the  inducement.3  It  is  doubtful, 
however,  whether  a  written  covenant  of  title,  or  against 
incumbrances  merely,  can  be  fairly  regarded  as  a  repre- 
sentation that  the  property  sold  is  unincumbered,  so  as 
to  be  the  foundation  of  an  indictment.     It  would  seem 

1  Reg.  v.  Coulson,  1  Den.  C.  C.  572.     See  also  Reg.  v.  Woolley, 

1  Den.  C.  C.  550;  Tn  re  Greenough,  31  Vt.  270;  State  v.  Mills,  17  Me. 
218  ;  Cowen  v.  People,  14  111.  348  ;  Colbert  v.  State,  1  Tex.  App.  341; 

2  Bishop  Cr.  Law,  §464;  Steph.  Dig.   Cr.  Law,  art.  330;  Roscoe's 
Cr.  Ev.  (9th  ed.)  498. 

2  State  v.  Thatcher,  35  N.  J.  445;  People  v.  Haynes,  11  Wend. 
(N.  Y.)  557;  Reg.  v.  Lince,  12  Cox  C.  C.  451 ;  Fay  v.  Com.,  28  Grat. 
( Va.)  912  ;  Snyder,  In  re,  17  Kan.  542. 

8  State  v.  Dorr,  33  Me.  498  ;  Com.  v.  Lincoln,  11  Allen  (Mass.),  233 ; 
Reg.  v.  Abbott,  1  Den.  C.  C.  173. 


FALSE  PRETENCES.  125 

to  be  only  an  agreement  which  binds  the  party  civilly 
in  case  of  breach.1 

§115.  Property  obtained.  —  In  general,  the  prop- 
erty obtained  must  be  such  as  is  the  subject  of  larceny.2 
The  obtaining  a  credit  on  account,3  for  instance,  is 
not  within  the  statute,  unless  its  scope  is  sufficient  to 
embrace  such  a  transaction ;  nor  is  the  procurement 
of  an  indorsement  of  payment  of  a  sum  of  money  on 
the  back  of  a  promissory  note.4  The  statutes  of  the 
several  States  must  control  in  this  particular. 

§  116.  False  Pretence.  Larceny. —  The  distinction 
between  the  crimes  of  obtaining  money  by  false  pretence 
and  larceny  is  fine  but  clear.  If  a  person  by  fraud  in- 
duces another  to  part  with  the  possession  only  of  goods, 
this  is  larceny  ;  while  to  constitute  the  former  offence, 
the  property  as  well  as  the  possession  must  be  parted 
with.6  In  larceny  the  owner  has  no  intention  to  part 
with  his  property,  and  the  thief  cannot  give  a  good 
title.  If  the  owner  delivers  his  property  under  the  in- 
ducement of  a  false  pretence,  with  intent  to  part  with 
his  property,  the  person  who  obtains  it  by  fraud  may 
give  a  good  title.6  If  the  owner  is  tricked  out  of  the 
possession,  and  does  not  mean  to  part  with  the  property, 
it  is  larceny ;  but  if  he  is  tricked  out  of  both,  yet 
means  to  part  with  his  property,  it  is  obtaining  property 
by  false  pretences." 

1  Rex  v.  Codrington,  1  C.  &  P.  661 ;  State  v.  Chunn,  19  Mo.  233. 

2  See  Larceny. 

8  Reg.  v.  Eagleton,  Dears.  516. 
4  State  v.  Moore,  16  Iowa,  412. 
»  Reg.  v.  Kilham,  L.  R.  1  C.  C.  2G1 ;  State  v.  Vickery,  19  Tex.  326. 

6  Zink  v.  People,  N.  Y.  Ct.  of  App.  1879,  8  Reptr.  275. 

7  Reg.  v.  Prince,  11  Cox  C.  C.  193.  See  also  the  very  recent  and 
elaborately  considered  case  of  Reg.  v.  Middleton,  12  Cox  C.  C.  260; 
8.  c.  1  Green's  Cr.  Law  Rep.  4. 


\ 


V  / 

126        .    ^>  "    CRIMINAL  LAW.  ^^^    \^P 

FORCIBLE    ENTRY    AND    DETAINER.       FORCIBLE    TRE3PASS. 

§  117.  This,  though  not  strictly  a  common-law 
offence,  was  made  so  at  an  early  date  by  statute  in 
England;1  and  is  now  in  many  of  the  States,  by  adop- 
tion, a  part  of  their  common  law.  It  consists  in 
"  violently  taking  or  keeping  possession  of  lands  and 
tenements,  with  menaces,  force  and  arms,  and  without 
the  authority  of  law."  2 

§  118.  Force  and  Violence. —  The  entry  or  detainer 
must,  in  order  to  constitute  an  indictable  offence,  be 
with  such  force  and  violence,  or  demonstration  of  force 
and  violence,  threatening  a  breach  of  the  peace  or  bodily 
harm,  and  calculated  to  inspire  fear,  and  to  prevent       jJ 
those  who  have  the  right  of  possession  from  asserting 
or  maintaining  their  right,  as  to  become  a  matter  of 
public  concern  in  contradistinction  to  a  mere  private 
trespass.3     Such  force  as  will  tend  to  a  breach  of  the 
peace  may  not  be  used  ;  but  only  such  force  is  permis-   .  v  jjJ 
slide  as  would  sustain  a  plea  in  justification  of  moliter  y  . 
mourns  imposuit*     That  degree  of  force  which  the  law 
allows  a  man  to  use  in  defence  of  his  lawful  possession,     ^    f 
it  does  not  allow  him,  if  it  be  tumultuous  or  riotous,  or 
tends  to  a  breach  of  the  peace,  to  use  in  recovering 
a  possession  of  which  he  has  been  dispossessed.    It  does 
not  allow  a  breach  of  the  peace  to  regain  possession  of 
property,  or  in  redress  of  private  wrongs.5     Like  cir- 

i  4  Bl.  Com.  148.  2  4  Bl.  Com.  148. 

3  Com.  v.  Shattuck,  4  Cush.  (Mass.)  145  ;  State  v.  Pearson,  2  N.  H. 
35;  Com.  v.  Keeper,  &c,  1  Ashm.  (Pa.)  140  ;  State  v.  Cargill,  2  Brev. 
(S.  C.)  445;  1  Hawk.  P.  C.  c.  28,  §  27;  Benedict  v.  Hart,  1  Cush. 
(Mass.)  487 ;  Wood  v.  Phillips,  43  N.  Y.  152. 

*  Fifty  Associates  v.  Howland,  5  Cush.  (Mass)  214. 

6  Sampson  v.  Henry,  11  Pick.  (Mass.)  379  ;  Gregory  v.  Hill,  8  T.  R. 
209;  Hyatt  v.  Wood.  3  Johns.  (N.  Y.)  239;  3  Bl.  Com.  4 ;  Davis  v. 
Whittredge,  2  Strobh.  (S.  C.)  232;  ante,  §  63. 


FORCIBLE   ENTRY  AND   DETAINER,  127 

cumstanccs  accompanying  the  detention  of  the  po> 
sion  of   real  property   will   constitute   a   forcible  de- 
tainer.1 

It  is  immaterial  how  the  intimidation  is  produced, 
whether  by  one  or  many,  by  actual  force  or  by  threats, 
or  tumultuous  assemblies,  or  by  weapons,  or  in  what 
other  way  it  may  be  produced,  provided  it  actually  oc- 
curs, or  might  reasonably  be  expected  to  occur,  if  the 
parties  entitled  to  possession  should  be  present  and  in 
a  position  to  be  affected  by  it.  And  entry  and  de- 
tainer by  such  demonstrations  of  force  and  violence  are 
equally  indictable,  although  no  one  be  actually  present 
and  in  possession  of  the  premises  entered  to  be  intimi- 
dated thereby.2 

Nor  need  the  display  of  force  be  upon  the  actual 
premises  ;  for  if  the  owner  be  seized  and  kept  away, 
for  the  purpose  of  thwarting  his  resistance,  and  an  entry 
be  then  made  during  such  enforced  absence,  though 
peaceably,  it  will  amount  to  a  forcible  entry  and  de- 
tainer.3 And  a  peaceable  entry  followed  by  a  forcible 
expulsion  of  the  owner  will  also  constitute  the  offence.4 
The  threats  of  violence  must  be  personal.  No  threats 
of  injury  to  property  will  be  sufficient.6 

§  110.  What  may  be  entered  upon  or  detained. — 
Peaceable  occupancy,  without  reference  to  title,  is  the 
possession  which  the  law  says  shall  not  be  taken  away 

i  1  Hawk.  P.  C.  c.  28,  §30  ;  Kline  v.  Rickets,  8  Cow.  (N.  Y.)  226  ; 
Com.  v.  Dudley,  10  Mass.  403. 

2  People  v.  Field,  52  Barb.  (N.  Y.)  128;  1  Hawk.  P.  C.  c.  28, 
§§  26,  29. 

»  People  v.  Field,  52  Barb.  (N.  Y.)  128;  1  Hawk.  P.  C.  c.  28, 
§§  26.  20. 

*  3  Bac.  Abr.  For.  Entry  (B). 

5  1  Hawk.  P.  C.  c.  28,  §  28. 


128  CRIMINAL  LAW. 

or  detained  by  force.1  And  this  possession  may  be 
constructive  as  well  as  actual ;  as  where  the  owner 
of  a  building,  which  he  does  not  personally  occupy,  but 
rents  to  tenants,  while  waiting  for  a  new  tenant,  is 
forcibly  kept  out  by  a  stranger  and  trespasser.2  Mere 
custody,  however,  is  not  enough.  Therefore,  if  a  ser- 
vant withholds  possession  against  his  employer,  the 
latter  is  not  guilty  of  the  offence  in  asserting  his  right 
to  the  possession  which  is  already  his,  and  which  the 
servant  has  not.3  So  if  the  owner  has  gained  peaceable 
possession  of  the  main  house,  this  carries  with  it  the 
possession  of  the  whole  ;  and  he  is  not  liable  under  the 
law  for  the  forcible  entry  of  a  shed  adjoining,  in  which 
a  tenant  had  entrenched  himself.4 

One  co-tenant  may  be  guilty  of  the  offence  as 
against  another  who  is  in  peaceable  possession  and 
resists  ; 6  and  so  may  a  wife  as  against  her  husband.6 

§  120.  Personal  Property.  Forcible  Trespass. —  These 
rules  and  principles  are  strictly  applicable  only  to  the 
forcible  entry  and  detention  of  real  property ;  and  it 
has  been  said  that  the  forcible  detainer  of  personal 
property  is  not  indictable.7  But  the  seizure  of  personal 
property  under  like  circumstances,  and  with  similar 
demonstrations,  may  be  indicted  as  a  forcible  tres- 

i  Rex  v.  Wilson,  8  T.  R.  357  ;  People  v.  Leonard,  11  Johns.  (N.Y.) 
504;  Beauchamp  v.  Morris,  4  Bibb  CKy.),  312;  State  v.  Pearson,  2 
N.  H.  550;   Com.  v.  Bigelow,  3  Pick.  (Mass.)  31. 

2  People  v.  Field,  52  Barb.  (N.  Y.)  198. 

3  State  v.  Curtis,  4  Dev.  &  Bat.  (N.  C.)  222;  Com.  v.  Keeper,  &c, 
1  Ashm.  (Pa.)  140. 

*  State  v.  Pridger,  8  Ired.  (N.  C.)  84. 

*  Reg.  v.  Marrow,  Cas.  temp.  Hardw.  174. 

6  Rex  v.  Smyth,  1  M.  &  R.  155. 

7  State  v.  Marsh.  64  X.  C  378. 


FORCIBLE  TRESPASS.     FORGERY.  129 

pass.1  And  there  seems  to  be  no  reason  why  ita 
forcible  detention  may  not  lie  also  indictable,  by  an 
analogous  change  in  the  description  of  the  offence. 
It  is  not  less  a  public  injury.  It  has  been  suggested 
that  the  offence  can  only  be  committed  when  the 
party  trespassed  upon  is  present;2  but  upon  principle 
as  well  as  upon  authority  the  reverse  seems  to  be  the 
better  law.8  ^^.jz^  <u- 

-P-  •  FORGERY. 

■ 

"*§  121.  Forgery  is  "  the  fraudulent  making  or  altera-1 
n-    tion  of  a  writing  to  the  prejudice  of   another  man's 
L,  *  right," 4 — the  word  "  writing  "  including  printed  and   '    .       £ 
engraved  matter  as  well,5  but  not  a  painting,  with  the 
name  of  the  artist  falsely  signed.6      The  instrument's! -r 
„,  forged,  it   is  generally  held,  must   purport  upon   its  •      .    & 
fne.p    in     sorrm   wfiv    to    nreindiee    the   lpo-nl    rio-lits    or    '~*\T* 


face   in    some  way  to    prejudice  the  legal  rights  or 


>  il c  pecuniary  interest  of  the  supposed  signer,  or  of  the 
uerson  defrauded.  Thus,  a  recommendation  of  one 
person  to  another  as  a  person  of  pecuniary  responsi-  jX^' 
t  bility,  may  be  the  subject  of  forgery.7  And  it  has 
been  held  in  England  that  the  false  making  of  ar 
letter  of  recommendation,  whereby  to  procure  an  ap- 
pointment  as  school-teacher,8  or  as  constable;9  and 

a  certificate  of  sood  character,  whereby  to  enable  the 

J 

»  State  v.  Ray,  10  Ired.  (N.  C.)  30 ;  State  v.  Widenhouse,  71  N.  C.         * 

2  State  v.  McAdden,  71  N.  C.  207. 

8  Ante,  §  118  ;  State  v.  Thompson,  2  Tenn.  96. 

4  4  Bl.  Com.  247. 

6  Com.  v.  Ray,  3  Gray  (Mass.),  441. 

8  Reg.  v.  Closs,7Cox  C.  C.  494. 

'  State  v.  Ames,  2  Greenl.  (Me.)  365. 

s  Rotr.  >■.  Sharman,  Dears.  C.  C.  286 

"  Reg.  v.  Moak.  D.  &  B.  C  C.  550. 


130  CRIMINAL  LAW. 

person  in  whose  favor  it  is  made  to  obtain  a  certifi- 
cate of  qualification  for  a  particular  service,  —  are  in- 
dictable forgeries  at  common  law:1  —  extreme  cases, 
no  doubt,  and  founded,  perhaps,  on  an  old  statute  of 
Henry  VIII.  c.  1  (not,  however,  so  far  as  appears  by 
the  reports,  referred  to  in  either  case),  whereby  cheat- 
ing by  false  "  privy  tokens  and  counterfeit  letters  in 
other  men's  names  "  is  made  an  indictable  offence. 
But  the  false  making  of  a  mere  recommendation  of 
one  person  to  the  hospitalities  of  another,  with  a  prom- 
ise to  reciprocate,  has  been  held  in  this  country  to  be 
no  forgery.2  Whether  in  a  case  precisely  analogous 
to  the  English  cases  just  referred  to  our  courts  would 
follow  them,  remains  to  be  seen.  Undoubtedly  they 
would,  wherever  a  substantially  similar  statute  may  be 
found.3  The  "  prejudice  to  another  mail's  right  "  may 
apply  as  well  to  the  party  imposed  upon  as  to  the  per- 
son whose  name  is  forged.  As  to  the  latter,  no  doubt 
the  writing  must  import  his  legal  liability  in  some  way. 
But  as  to  the  former,  if  he  is  defrauded  or  imposed 
upon,  or  the  forgery  is  made  with  the  fraudulent  intent, 
the  act  seems  to  come  clearly  within  the  definition.  It 
is  certainly  to  be  questioned  whether  the  law  will  allow 
a  man  to  live  upon  the  hospitalities  of  his  fellows,  which 
he  has  obtained  by  forged  letters  of  recommendation. 
The  forgery  is  not  the  less  a  forgery  because  it  is  made 
use  of  as  a  false  pretence.4 

§  122.   Forgery  must  be  Material.  —  The  false   mak- 
ing, however,  must  be  of  some  instrument  having  pecu- 

1  Reg.  v.  Toshack,  1  Den.  C.  C.  492. 

2  Waterman  v.  People,  67  111.  91. 

8  Com.  v.  Hartnett,  3  Gray  (Mass.),  450. 

*  Com.  v.  Coe,  115  Mass.  481 ;  s.  c.  2  Green's  Cr.  Law  R.  292 


FORGERY.  131 

niary  importance,  or  its   alteration   in  some   material 
respect. 

A  very  slight  alteration,  however,  may  be  material. 
It  has  been  held  in  England  that  the  alteration  of  the 
name  of  the  person  to  whom  a  note  is  payable,  —  the 
alteration  being  from  the  name  of  an  insolvent  to  a  sol- 
vent firm,1  —  and  in  this  country,  that  the  alteration  of 
the  name  of  the  place  where  payable,  is  material.  And 
alteration  by  erasure  constitutes  the  offence.2  So  does 
any  other  erasure,  or  detachment  from  or  leaving  out,  as 
from  a  will,  of  a  material  part  of  the  instrument,  where- 
by its  effect  is  changed.3  If  the  instrument  do  not  pur- 
port to  be  of  any  legal  force,  whether  its  invalidity  lie 
matter  of  form  or  substance,  —  as  if  it  be  a  contract 
without  consideration,4  or  a  will  not  witnessed  by  the 
requisite  number  of  witnesses,5  or  a  bond  or  other 
instrument  created  and  defined  by  statute,  but  not 
executed  conformably  to  the  statute, —  then  the  false 
making  or  alteration  is  not  a  forgery.6  The  addition, 
moreover,  of  such  words  as  the  law  would  supply,7  or 
of  a  word  or  words  otherwise  immaterial,  and  such  as 
would  not  change  the  legal  effect  of  the  instrument, 
—  as  where  the  name  of  a  witness  is  added  to  a  promis- 
sory note,  in  those  States  where  the  witness  is  imma- 
terial, —  would   not  constitute  the  offence  ; 8  though, 

»  Rex  v.  Treble,  2  Taunt.  328;  State  v.  Robinson,  1  Harr.  (N.  J.) 
607. 

2  White  v.  Huss,  32  Ala.  470. 

8  State  v.  Strotton,  27  Iowa,  420;  Coomb's  Case,  Noy,  101. 

*  People  v.  Shall,  9  Cow.  (N.  Y.)  778. 

»  Rex  v.  Wall,  2  East  P.  C.  953 ;  State  v.  Smith,  8  Yerg.  (Tenn.) 
150. 

6  Cunningham  v.  People,  11  N.  Y.  Sup.  Ct.  n.  s.  455. 

1  Hunt  v.  Adams,  0  Mass.  519. 

8  State  v.  Gherkin,  7  Ired.  (N.  C)  206. 


132  CRIMINAL  LAW. 

doubtless,  in  those  States  where  such  addition  would  be 
material,  by  making,  as  in  Massachusetts,  the  security- 
good  for  twenty  instead  of  six  years,  such  an  alteration 
would  be  held  a  forgery.  Nor,  it  seems,  would  the  al- 
teration of  the  marginal  embellishments  or  marks  of  a 
bank-note,  not  material  to  the  validity  of  the  note,  con- 
stitute forgery.1 

If  the  instrument  forged  does  not  appear  upon  its 
face  to  have  any  legal  or  pecuniary  efficacy,  it  must  be 
shown  by  proper  averments  in  the  indictment  how  it 
may  have.2 

§  123.  Legal  Capacity.  Fictitious  Name.  —  It  is  not 
essential  that  the  person  in  whose  name  the  instrument 
purporting  to  be  made  should  have  the  legal  capacity  to 
act,  nor  that  the  person  to  whom  it  is  directed  should 
be  bound  to  act  upon  it,  if  genuine,  or  should  have  a 
remedy  over.3  Indeed,  the  forged  name  may  be  that  of 
a  fictitious  person,4  or  of  one  deceased,6  or  of  an  expired 
corporation.6  But  signing  to  a  note  the  name  of  a  firm 
which  in  fact  does  not  exist,  one  of  the  names  in  the 
alleged  firm  being  that  of  the  signer  of  the  note,  is 
not  forgery.7  Even  the  signing  one's  own  name,  it 
being  the  same  as  that  of  another  person,  the  intent 

i  State  v.  Waters,  3  Brev.  (S.  C.)  507. 

2  State  v.  Wheeler,  19  Minn.  98;  State  v.  Pierce,  8  Clarke  (Iowa), 
231;  Cora.  v.  Ray,  3  Gray  (Mass.),  441;  People  v.  Tomlinson,  35 
Cal.  503  ;  post,  §  125. 

8  People  v.  Krummer,  4  Park.  C.  R.  (N.  Y.)  217  ;  State  v.  Kimball, 
50  Me.  409. 

*  Rex  v.  Bolland,  1  Leach  C.  C.  83 ;  Rex  v.  Marshall,  Russ.  &  Ry. 
75 ;  Sasser  v.  State,  13  Ohio,  453  ;  People  v.  Davis,  21  Wend.  (N.  Y.) 
309. 

6  Henderson  v.  State,  14  Tex.  503. 

«  Buckland  v.  Com.,  8  Leigh  (Va.),  734. 

1  Com.  v.  Baldwin,  11  Gray  (Mass.),  197. 


FORGERY.  133 

being  to  deceive  and /defraud,  by  using  the  instrument 
as  that  of  the  other  person,1  may  constitute  the  offence. 
But  the  alteration  of  one's  own  signature  to  give  it 
the  appearance  of  forgery,  though  with  a  fraudulent 
intent,  is  not  forgery.2  Nor  where  two  persons  have 
the  same  name  but  different  addresses,  and  a  bill  is 
directed  to  one,  with  his  proper  address,  is  the  ac- 
ceptance by  the  other,  adding  his  proper  address,  a 
forgery.3 

§  1 24. '  The  alteration  may  be  by  indorsing  another 
name  on  the  back  of  a  promissory  note,4  or  by  falsely 
filling  up  an  instrument  signed  in  blank,  as  by  insert- 
ing or  changing  the  words  of  a  complete  instrument,5 
or  by  writing  over  a  signature  on  a  piece  of  blank  paper,6 
or  by  tearing  off  a  condition  from  a  non-negotiable 
instrument,  whereby  it  becomes  so  altered  as  to  purport 
to  be  negotiable,7  or  by  pasting  one  word  over  another,8 
or  by  making  the  mark  instead  of  a  signature,9  or  by 
photographing.10  So  the  alteration  of  an  entry,  or 
making  a  false  entry,  by  a  clerk,  in  the  books  of  his 
employer,  with  intent  to  defraud,  is  a  forgery.11  And  so 
is  the  obtaining  by  the  grantee  from  the  grantor  his 

1  People  v.  Peacock,  6  Cow.  (N.  Y.)  72;  Mead  v.  Young,  4  T.  R. 
28. 

2  Brittain  v.  Bank  of  London,  3  F.  &  F.  46. 
'  Rex  v.  Webb,  3  B.  &  B.  228. 

«  Powell  v.  Com.,  11  Gratt.  (Va.)  822. 

5  State  v.  Krueger,  47  Mo.  552. 

6  Caulkins  v.  Whistler,  29  Iowa,  416. 

7  State  v.  Stratton,  27  Iowa,  420 ;  Benedict  v.  Cowden,  49  N.  Y. 
896. 

8  State  v.  Robinson,  1  Harr.  (N.  J.)  507. 

9  Rex  v.  Dunn,  2  East  P.  C.  903. 

10  Reg.  o.  Rinaldi,  9  Cox  C.  C.  391. 

11  Reg.  v.  Smith,  1  L.  &  C  1G8 ;  Biles  v.  Com.,  32  Pa.  St.  529. 


134  CRIMINAL  LAW. 

signature  to  a  deed  different  from  that  which  had  been 
drawn  up  and  read  to  the  grantor,1  or  by  the  promisee 
from  the  promisor  his  signature  to  a  note  for  a  greater 
amount  than  had  been  agreed  upon.2  And  in  England 
it  has  been  quite  recently  held,  upon  much  consid- 
eration, that  where  a  man  who  had  deeded  away  his 
property,  afterwards,  by  another  deed,  falsely  antedated, 
conveyed  to  his  son  a  part  of  the  same  property,  he  was 
guilty  of  forgery,3 — a  doctrine  which,  however,  has 
not  only  not  been  adopted,  but  has  been  doubted,  in 
this  country,4  where  the  received  doctrine  is,  that  a 
writing,  in  order  to  be  the  subject  of  forgery,  must  in 
general  be,  or  purport  to  be,  the  act  of  another  ;  or  it 
must  at  the  time  be  the  property  of  another ;  or  it  must 
be  some  writing  under  which  others  have  acquired 
rights,  or  have  become  liable,  and  where  these  rights 
and  liabilities  are  sought  to  be  changed  by  the  altera- 
tion, to  their  prejudice,  and  without  their  consent.6 
Under  this  rule  it  seems  that  the  maker  of  an  instru- 
ment may  be  guilty  of  forgery  by  altering  it  after  it  has 
been  delivered  and  becomes  the  property  of  another  ;  6 
but  the  alteration  of  a  draft  by  the  drawer,  after  it  has 
been  accepted  and  paid  and  returned  to  him,  is  no  forg- 
ery, but  rather  the  drawing  of  a  new  draft.7 

§  125.   The  intent  to  defraud  is  a  necessary  element 
in  the  crime  of  forgery.     But  it  is  not  necessary  that 

1  State  v.  Shurtliff,  18  Me.  368. 

2  Com.  v.  Sankey,  22  Pa.  St.  390. 

8  Reg.  v.  Ritson,  Law  Rep.  1  C.  C.  200. 
4  2  Bishop  Cr.  Law,  §§  584,  585. 

8  State  v.  Young,  46  N.  H.  66  ;  Com.  v.  Baldwin,  11  Gray  (Mass.), 
197. 

6  State  v.  Young,  46  N.  H.  266  ;  Com.  v.  Mycall,  2  Mass.  136. 
i  People  v.  Fitch,  1  Wend.  (N.  Y.)  198. 


FORGERY.  135 

the  fraud  should  become  operative  and  effectual,  so  that 
some  one  is  in  fact  defrauded,  nor  need  the  intent  be 
to  defraud  any  particular  person,  or  other  than  a  gen- 
eral intent  to  defraud  some  person  or  another.1  An 
alteration,  therefore,  by  one  party  to  an  instrument,  to 
make  it  conform  to  what  was  mutually  agreed  upon, 
being  without  fraudulent  intent,  lacks  the  essential 
quality  of  fraud.2 

The  lack  of  similitude  between  a  genuine  and  a 
forged  signature  is  immaterial,  except  as  bearing  upon 
the  question  of  intent.  The  fact  of  no  resemblance 
at  all  gives  rise  to  the  inference  that  there  was  no 
fraudulent  intent.  But  if  the  signature  be  proved,  the 
presumption  of  fraud  arises,  whether  there  is  any  re- 
semblance or  not  between  the  genuine  and  forged  sig- 
natures.3 

And  even  if  the  resemblance  be  close  and  calcu- 
lated to  deceive,  the  act  may  be  shown  to  have  been 
done  without  any  fraudulent  intent.4  As  the  es- 
sence of  forgery  is  the  intent  to  defraud,  the  mere 
imitation  of  another's  writing,  or  the  alteration  of 
an  instrument  whereby  no  person  can  be  pecuniarily 
injured,  does  not  come  within  the  definition  of  the  of- 
fence. And  if  this  probability  of  injury  does  not  appear 
on  the  face  of  the  instrument,  it  must  be  shown  in  the 
indictment,  by  proper  averments,  how  the  injury  may 

1  Com.  v.  Ladd,  16  Mass.  526 ;  Rex  v.  Ward,  2  Lil.  Raym.  1401  ; 
Henderson  v.  State,  14  Tex.  503. 

2  Pauli  p.  Com.  (Pa.),  8  Reptr.  247. 

8  Mazagora's  Case,  II.  &  R.  291  ;  Cora.  v.  Stevenson,  11  Cush. 
(Mass.)  481  ;  Reg.  v.  Jessop,  D.  &  B.  442;  Reg.  v.  Coulson,  1  Don. 
592;  State  ».  Anderson  (La.),  6  Reptr.  525. 

4  Reg.  V.  Parish,  8  C.  &  P.  04  ;  Rex  v.  Harris.  7  C.  &  P.  428 ;  Com 
lodenough,  Thatch.  Cr.  ('as.  (Mass.)  182. 


136  CRIMINAL   LAW. 

happen.  Thus,  the  alteration  of  the  date  ot  a  check  in 
a  check-book  does  not  of  itself  import  injury  to  any  one, 
and  in  order  to  make  it  the  foundation  of  an  indictment, 
it  must  be  set  forth  in  the  indictment  how  this  may 
happen.1  Nor  does  an  alteration  of  an  instrument 
to  the  prejudice  alone  of  him  who  alters  constitute 
forgery  ;  as  when  the  holder  and  payee  of  a  promis- 
sory note  alters  the  amount  payable  to  a  smaller  sum.2 

FORNICATION. 

§  126.  Fornication  is  the  unlawful  sexual  inter- 
course of  an  unmarried  person  with  a  person  of  the 
opposite  sex,  whether  married  or  unmarried.  In  some 
States  such  intercourse  with  a  married  person  is  made 
adultery.  Like  adultery,  it  was  originally  of  ecclesias- 
tical cognizance  only ;  and  without  circumstances  of 
aggravation,  which  will  make  it  part  and  parcel  oi 
another  offence,  it  is  not  believed  to  have  been  recog- 
nized as  an  offence  at  common  law  in  this  country.3 
The  statutes  of  the  several  States,  however,  generally 
if  not  universally,  make  it  punishable  under  certain 
circumstances  of  openness  and  publicity,  which,  per- 
haps, would  make  it  indictable  if  there  were  no  statute.4 
And  where  it  is  indictable,  it  has  been  frequently 
held  that,  on  failure  to  prove  the  marriage  of  the  party 
indicted  for  adultery,  he  may  be  found  guilty  of  forni- 

1  Com.  v.  Mulholland  (Pa.),  5  Weekly  Notes  of  Cases,  208. 

2  1  Hawk.  P.  C.  bk.  1,  c.  70,  §  4.     See  also  Counterfeiting. 

3  State  v.  Ralil,  33  Tex.  76  ;  State  v.  Cooper,  16  Vt.  551. 

i  Ainlerson  v.  Com.,  5  Rand.  ( Va.)  627  ;  State  v.  Cooper,  ubi  supra; 
Try.  of  Mont  v.  Whitcomb,  1  Mon.  359  ;  State  v.  Moore,  1  Swan 
(Tenn.),  136  ;  4  Bl.  Com.  65,  and  note  by  Chitty.  See  also  Cook  v 
State,  11  Ga.  53. 


FORNICATION.    HOMICIDE.  137 

cation,  if  the  circumstances  alleged  and  proved  would 
warrant  a  conviction  on  an  indictment  for  fornication.1 

k_        ,  0JK1  wnaJt  V  -\ 

iioiirciDfi. 

§  127.    Homicide  is  the  killing  of  a  human  being. 

It  may  be  lawful,  as  when  one  shoots  an  enemy  in 
war,  or  the  sheriff  executes  another  in  pursuance  of 
the  mandate  of  the  court,  or  kills  a  prisoner  charged 


,  with  felony,  in  the  effort  to  prevent  his  escape,  and 
*  hence  called  justifiable  homicide,  in  contradistinc- 
tion to  excusable  homicide,  or  a  homicide  committed 
in   protecting   one's   person,   or   the   security   of   his 


house 


^^Justifiable  Homicide. — In  addition  to  the  illustrations 

already  given,  it  may  be  said,  generally,  that  wherever. 

;in  the  performance  of  a  legal  duty,  it  becomes  neces> 

*  3>sary  to  the   faithful   and   efficient  discharge    of  that 

-duty  to   kill   an   assailant  or  fugitive  from  justice,  or 

•-^t,  •  a  riotous  or  mutinous  person,  or  where  one  interposes 

rto  prevent  the  commission  of  some  great  and  atro- 

'  cious  crime,  amounting  generally,  though  not  neces- 

^  sarily,  to  felony,2  and  it  becomes  necessary  to  kill  to 

X  prevent  the  consummation  of  the  threatened  crime,3 

' — in  all  these  cases  the  homicide  is  justified  on  the 

ground   that  it  is  necessary,  and  in   the   interest  of 

the  safety  and  good  order  of  society.     But  homicide 

v'can  never  be  justifiable,  except  when  it  is  strictly  law- 

aO  Jj        l  Res^Wca  v.  Roberts,  2  ball'.'  (U.  S.)  124;  State  v.  Cowdl,  4 
*Z.  Ired.  (N.  C.)  231.     See  also  Com.  v.  Squires,  97  Mass.  59;  State  v. 

Cox,  2  Taylor  (N.  C.  T.  B.),  166.  ^    \c 

^LZ  %        2  post>  §  143.  g     I 

%rf~      s  United  States  v.  Wiltberger,  3  Wash.  C.  C.  615. 
•*.  \?»  t   i^j    ^»_*  v\V\  V^^H 


'" 


138  CRIMINAL  LAW. 

ful  and  necessary.  The  soldier  who  shoots  his  ad- 
versary must  strictly  conform  to  the  laws  of  war;1 
and  the  sheriff  who  executes  a  prisoner  must  follow 
the  mode  prescribed  by  his  warrant.2 

The  distinction  between  justifiable  and  excusable 
homicide  rested,  in  the  early  common  law,  upon  the 
fact  that  the  latter  was  punishable  by  the  forfeiture 
of  goods,  while  the  former  was  not  punishable  at  all.3 
It  long  since,  however,  became  very  shadowy,  and 
has  now  an  interest  rather  historical  than  practical, 
—  the  verdict  of  not  guilty  being  returned  whenever 
the  circumstances  under  which  the  homicide  takes 
place  constitute   either   a  justification  or  an  excuse.4 

§  128.  Human  Being.  Time.  Suicide.  —  In  order  to 
constitute  homicide,  the  killing  must  be  of  a  person 
in  being ;  that  is,  born  and  alive.  If  the  killing  be  of 
a  child  still  unborn,  though  the  mother  may  be  in  an 
advanced  state  of  pregnancy,5  or  if  the  child  be  born, 
and  it  is  not  made  affirmatively  to  appear  chat  it  was 
bora  alive,  it  is  no  homicide.6  Death,  however,  conse- 
quent on  exposure,  after  premature  birth,  alive,  unlaw- 
fully procured,  is  criminal  homicide.7 

It  is  also  a  rule  of  the  common  law,  valid,  no  doubt, 
at  the  present  day,  that  the  death  must  happen  within 
a  year  and  a  day  after  the  alleged  crime,  otherwise  it 
cannot  be  said  —  such  was  the  reasoning  —  to  be  con- 

i  State  v.  Gut,  13  Minn.  841 ;  4  Bl.  Com.  198. 

2  1  Hale  P.  C.  433. 

3  1  Hawk.  P.  C.  c.  28. 
*  4  Bl.  Com.  186. 

6  1  Russell  on  Crimes,  424  ;  Evans  v.  People,  40  N.  Y.  86. 
6  United  States  v.  Hewson,  7  Law  Reporter  (Boston),  361. 
i  Reg.  v.  West,  2  C.  &  K.  784. 


-f 


homicide.  139 

sequent  upon  it.1  In  the  computation  of  the  time,  the 
whole  day  on  which  the  hurt  was  received  is  reckoned 
the  first.2 

Deliberate  suicide  is  self-murder,  and  though   not 
punishable,  one  who  advises  and,  being  present,  aids-u      *»     j 
and  abets  another  to  commit  suicide,  is  guilty  of  mur-  s  .  --  ^c? 
der.3     So,  also,  one  who  kills  another  at  his  request  is^*r  <r<- 
as  guilty  of  murder  as  if  the  act  had  been  done  merely-rw 
of  his  own  volition.4 

§  129.  Murder.  —  Of  unlawful  homicides,  murder  is 
the  most  criminal  in  degree,  and  consists  in  the  un- 
,  lawful  killing  of  a  human  being  with  malice  afore- 
t  *  thought;  as  when  the  deed  is  effected  by  poison 
"^  \  knowingly  administered,  or  by  lying  in  wait  for  the 
*>  victim,  or  in  pursuance  of  threats  previously  made, 
3  and,  generally,  where  the  circumstances  indicate  de- 
Wsign,  preparation,  intent,  and,  hence,  previous  con- 
Si  sideration.5 

§  130.  Malice.  Express  and  Implied.  —  This  malice 
may  be  express,  as  where  antecedent  threats  of  ven-  cf^V 
geance  or  other  circumstances  show  directly  that  the_  ^ 
criminal  purpose  was  really  entertained;  ovlimphed, 
*  as  where,  though  no  expressed  criminal  purpose  is 
proved  by  direct  evidence,  it  is  indirectly  but  neces- 
sarily inferred  from  facts  and  circumstances  which  are 
proved. 


r 


iT 


i  Coke's  Third  Inst.  p.  33 ;  State  v.  Shepherd,  8  Ired.  (N.  C.)  195 ; 
People  v.  Kelley,  6  Cal.  210. 

-  1  Russ.  Crimes,  428. 

8  Rex  v.  Dyson,  Russ.  &  Ry.  623  ;  Com.  v.  Bowen,  13  Mass.  356. 

*  1  Hawk.  P.  C  c.  27,  §  6 ;  Rex  v.  Sanger,  1  Russ.  421 ;  Black 
burn  v.  State,  23  Ohio  St.  146. 

6  4  Bl.  Com.  196;  Com.  v.  Webster,  5  Cush.  (Mass.)  816  '  k'  j     \ 

i  "-;* 


140  CRIMINAL  LAW. 

"Where  the  killing  can  only  be  accounted  for  on  the 
supposition  of  design  or  intent,  the  law  conclusively 
implies  malice  ;  or,  in  other  words,  the  courts  in- 
struct the  jury  that,  certain  facts  being  proved,  malice 
is  to  be  implied.  And  malice  is  implied  by  the  law 
when,  though  no  personal  enmity  may  be  proved,  the 
perpetrator  of  the  deed  acts  without  provocation  or  ap- 
parent cause,  or  in  a  deliberately  careless  manner,  or 
with  a  reckless  and  wicked  hostility  to  everybody's 
rights  in  general,  or  under  such  circumstances  as 
indicates  a  wicked,  depraved,  and  malignant  spirit.1 

And  the  better  opinion  is  that  under  the  modern 
statutes,  defining  murder  in  the  first  degree,  as  well 
as  at  common  law,  this  implied  malice  is  effectual 
to  constitute  murder  in  the  first  degree,  all  doubts  as  to 
guilt  of  the  higher  degree  being  resolved  in  favor 
of  the  prisoner,  and  of  the  lower  degree.2 

§131.  Malice  Aforethought.  —  It  is  not  necessary 
that  the  design,  preparation,  or  intent,  which  consti- 
tutes malice  aforethought,  should  have  been  enter- 
tained for  any  considerable  period  of  time  prior  to  the 
killing.  It  is  enough  to  constitute  this  sort  of  malice 
that  a  conscious  purpose,  design,  or  intent  to  do  the 
act  should  have  been  completely  entertained,  for  how- 
ever limited  a  period  prior  to  the  execution.3  Yet,  in 
Pennsylvania,  where  deliberate  premeditation  is  made 
a  necessary  characteristic  of  murder  in  the  first  degree, 


i  State  v.  Smith,  2  Strob.  (S.  C.)  77;  4  Bl.  Com.  198. 

2  Whart.  Horn.  §§  660-664,  and  cases  there  cited. 

3  People  v.  Williams,  43  Cal.  314;  Com.  v.  Webster,  5  Cush. 
(Mass.)  205;  People  v.  Clark,  3  Seld.  (N.  Y.)  385;  Shoemaker  v.  State, 
12  Ohio,  41.  J  to*    0.14. 


HOMICIDE.  141 

it  seems  to  be  held  that  those  words  implv  something! 
more  than  malice  aforethought.1 

§  132.  Presumptive  Malice.  —  It  was  formerly  held 
that  every  homicide  is  to  be  presumed  to  be  of  malice 
aforethought,  unless  it  appears  from  the  circumstances 
of  the  case,  or  from  facts  shown  by  the  defendant  in 
explanation  that  such  malice  does  not  exist.2  But  the 
better  doctrine  now  is,  doubtless,  in  accordance  with 
the  dissenting  opinion  of  Mr.  Justice  Wilde,  in  the 
case  just  cited,  that  when  the  facts  and  circumstances 
attendant  upon  the  killing  are  equivocal,  and  may  or 
may  not  be  malicious,  it  is  for  the  government  to 
show  that  they  are  malicious  ;  otherwise,  the  de- 
fendant is  entitled  to  the  most  favorable  construction 
of  which  the  facts  will  admit.  If,  for  instance,  two 
persons  are  in  a  room  together,  and  one  is  seen  to 
emerge  therefrom,  holding  a  knife  in  his  hand,  leaving 
behind  him  the  other  dead,  and  wounded  in  such  a 
manner  that  it  is  certain  that  the  death  must  have 
been  caused  by  the  knife  in  the  hand  of  the  person 
who  is  seen  to  emerge,  yet  as  the  homicide  may  have 
been  murder,  manslaughter,  or  in  self-defence,  it  is 
for  the  government  to  produce  evidence  that  it  was 
the  former,  before  it  will  be  entitled  to  a  verdict  of 
guilty  of  murder ;  and  it  cannot  rely,  for  such  verdict, 
upon  the  mere  presumption  that,  the  killing  being 
shown  without  explanation,  it  was  malicious.3     The 

1  Jones  v.  Com.,  75  Pa.  St.  403.  See  also  Atkinson  v.  State,  20 
Texas,  622. 

*  Com.  v.  York,  9  Met.  (Mass.)  93,  Mr%  Justice  Wilde  dissenting; 
Com.  v.  Webster,  5  Cush.  (Mass.)  316. 

c  See  Bennett  &  Heard's  Leading  Cr.  Cas.  vol.  i.  p.  322;  Wharton, 
Homicide  (2d  ed.),  §§  664-669 ;  Stokes  v.  People,  57  N.  Y.  164  ;  State 
9.  Porter,  34  Iowa,  131 ;  People  v.  Moody,  45  Cal.  $ 


142  CRIMINAL  LAW. 

l> 

£  „    law  does  not  presume  the  worst  of  several  possible 
solutions   against   the    prisoner ;   it   rather   presumes 
V  l   that  that  state  of  facts  is  the  true  one  which  would 
if  be  most  favorable  to  him.1 

§  133.    Degrees  of  Murder.  —  Formerly  murder,  the 


i/\ 


i 


C 


least  as  well  as  the  most  atrocious,  was  punished  by 
•^  death.     Now,  however,  in  many  of  the  States,  murder  A 

lotXc  ~  has,  by  statute,  been  made  a  crime  punishable  with 
.  .  =  °z "?  greater  or  less  severity,  according  to  the  circumstances 
c  ^  *  J\  of  atrocity  under  which  it  is  committed,  —  death  being     ,  p> 
*  j^-~  £  ^  inflicted  only  in  the  most  atrocious  cases.     Hence  the     -  3 
different  degrees  of  murder  of  which  the  books  speak.      *<* 
Manslaughter  has  also,  by  the  statutes  of  some  of  the        ^ 
States,  its  several  degrees,  founded   upon  the  same 
principle  of  greater  or  less  depravity  indicated  by  the       ,  f  * 
attendant  circumstances.     These  several  statutes  are 
held  not  to  have  changed  the  form  of  pleading  at  com- 
mon law  ;  but  the  jury  are  to  find  the  crime  as  of  the 
degree  which  the  facts  warrant,  the  court  instructing        h 
cj  j  **  them  that  such  and  such  facts  if  proved  would  show        J 
°  ^  *  the  crime  to  be  of  a  particular  degree.     Nor  have        -- 
z  I?  ^  those  statutes  changed  the  rules  of  evidence.     Yet  in      ^ 
^  ccA  considering  cases  decided  in  these  States,  it  is  worth      ^  < 
°7  Z>  *   while  to  consider  that  in  matters  of  definition  the       ,  £ 
*  common  law  of  murder  may  have  been  modified,  so       *  ^ 
that,  in  determining  what  is  murder  and  what  man-       ,  j 
slaughter  at  common  law,  these  cases  are  not  always 
safe  guides.2 

i  United  States  v.  Mingo,  2  Curtis  CC.1;  Read  v.  Com.,  22  Gratt. 
(Va.)  924. 

2  Dawes  v.  State,  39  Md.  355;  Green  v.  Com.,  12  Allen  (Mass.), 
155.  In  Ohio,  there  are  no  crimes  at  common  law.  Points  v.  State,  8 
Ohio.  111. 

<*\ 


HOMICIDE.      7^— ^v^jV    14o 

§  lo4.  Manslaughter  is  any  unlawful  killing  without  ' 
malice  aforethought';  as  when  one  strikes  his  wile,  and 
death  results  from  the  blow,  though  not  intended,1  or 
kills  another  in  a  fight  arising  upon  a  sudden  quarrel,-, 
or  upon  mutual  agreement,3  or  in  the  heat  of  passion, 
or  upon  great  provocation.4 

Every  unlawful  homicide  is  either  murder  or  man- 
slaughter, and  whether  it  is  one  or  the  other  depends 
upon    the   presence  or  absence  of  the   ingredient  of,~ 
malice.0 

Manslaughter    may   be    voluntary   or    involuntary. 
Voluntary  manslaughter  is  when  the  act  is  committed  Sc*  nsi  Q^ 
"*7  ^      with  a  real  design  to  kill,  but  under  such  circumstances 

*-A-V*-0  try/ 

«£fcc.^oJt)f  provocation  that  the  law,  in  its  tenderness  for  hu- 

*'  man  frailty,  regards  them  as  palliating  the  criminality  -ft  -V 
of  the  act  to  some  extent.       .  Jt*  uv\1 

^Involuntary  manslaughter  is  when  one  causes  the  *.•*!*. 

death  of  another  by  some  unlawful  act,  but  without  ^  ^^-^^ 
the  intention  to  take  life.6  *  ^M  °i 

§  loo.  Mitigating  Circumstances.  —  What  are  the  cir- 
cumstances of  provocation  which  reduce  this  crime 
from  murder  to  manslaughter  it  is  not  easy  to  define. 
It  seems  to  be  agreed  that  no  words,  however  oppro- 
brious, and   no  trespass  to  lands  or  goods,  however 

1  Com.  o.  McAfee,  108  Mass.  458. 

2  State  o.  Massage..  65  N.  C.  480. 

3  Gunn  v.  State,  30  Ga.  67. 

4  Maria  v.  State,  28  Texas,  G98;  Holly  v.  State,  10  Humph.  (Tenn.) 
141 ;  Preston  v.  State,  25  Miss.  383;  Com.  v.  Webster,  5  Cush.  (Mass.) 
295 ;  State  v.  Murphy,  Gl  Me.  56. 

5  Head  v.  Com.,  22  Grat.  (Va.)  924;  Com.  t;.  Webster,  5  Cush 
(Maes.)  198. 

6  Com.  i*.  Webster,  5  Cush.  (Mass.)  295. 


144  CRIMINAL  LAW. 

aggravating,  will  be  sufficient.  To  mitigate  a  murder 
to  manslaughter,  the  excited  and  angry  condition  of 
the  person  committing  the  act  must  proceed  from 
some  cause  which  would  naturally  and  instantly  pro- 
duce in  the  minds  of  men,  as  ordinarily  constituted, 
a  high  degree  of  exasperation.  Otherwise,  a  high-tem- 
pered man,  who  habitually  indulges  his  passion,  would 
be  entitled  to  the  same  consideration  as  one  who  habit- 
ually controls  his  passion.  The  law  seeks  to  arrive  at 
such  a  result  as  will  lead  men  to  cultivate  habits  of 
restraint  rather  than  indulgence  of  their  passions. 
Hence  the  question  ordinarily  is  not  so  much  whether 
the  party  killing  is  actually  under  the  influence  of  a 
great  passion,  as  whether  such  a  degree  of  passion 
might  naturally  be  expected  had  he  exercised  such 
self-control  as  a  due  regard  to  the  rights,  and  a  due 
consideration  of  the  infirmities,  of  others,  in  the  in- 
terest of  public  safety,  require.  There  must  also  be 
a  reasonable  proportion  between  the  mode  of  resent- 
ment and  the  provocation.1 

§136.  Provocation. — The  homicide,  moreover,  is 
not  entitled  to  this  reduction  in  the  degree  of  its  crim- 
inality, unless  it  be  done  under  the  influence  of  the 
provocation.  If  it  be  done  under  its  cloak,  it  will  not 
avail  to  excuse  to  any  extent.  If  it  can  be  reasonably 
collected  from  the  weapon  made  use  of,  or  from  any 
other  circumstances,  that  there  was  a  deliberate  intent 
to  kill,  or  to  do  some  great  bodily  harm,  such  homi- 
cide will   be  murder,  however  great  may  have  been 

1  Com.  v.  Webster,  6  Cush.  (Mass.)  295;  State  v.  Starr,  38  Mo. 
270;  Fralick  v.  People,  65  Barb.  (N.  Y.)  714;  Flannagan  v.  State,  46 
Ala.  73 ;  Preston  v.  State,  22  Miss.  383 ;  People  v.  Butler,  8  Cal.  435 ; 
Nelson  v.  State,  10  Humph.  518 ;  Preston  v.  State,  25  Miss.  383. 


HOMICIDE.  145 

the  provocation.1  Nor  does  provocation  furnish  any 
extenuation,  unless  it  produces  passion.2  And  seeking 
a  provocation  through  a  quarrel  or  otherwise,  or  going 
into  a  fight  dangerously  armed  and  taking  one's  adver- 
sary at  unfair  advantage,  is  such  evidence  of  malice  as 
to  deprive  the  guilty  party  of  all  advantage  of  the  plea 
of  provocation.3  Where  two  parties,  as  in  the  case  of 
a  duel,  enter  into  a  conflict  deliberately,  and  death  en- 
sues to  either,  it  is  murder  by  the  other ;  while  the 
same  result,  if  the  conflict  be  sudden  and  in  hot  blood, 
is  but  manslaughter.4 

Upon  this  point,  also,  the  fact  that  the  injured  party 
is  greatly  the  inferior  of  his  assailant  —  as  if  he  he  a 
child,  or  woman,  or  a  man  physically  or  mentally  en- 
feebled—  is  an  important  element  in  determining  how 
much  is  to  be  deducted  from  the  criminality  of  the 
offence  on  the  score  of  provocation.5 

And  however  great  may  have  been  the  provocation, 
if  sufficient  time  and  opportunity  have  transpired  to 
allow  the  aroused  passions  to  subside,  or  the  heated 
passions  to  cool,  death  afterwards  inflicted  is  murder, 
whether  the  passions  have  subsided  or  the  heated 
blood  cooled  or  not ;  and  it  is  a  question  of  law  for 
the  court  to  say  whether  that  time  has  elapsed.6 

1  1  Russell  on  Crimes,  pp.  423,  440;  State  v.  Cheatwood,  2  Hill 
(S.  C),  459;  Felix  v.  State,  18  Ala.  720;  People  v.  Austin,  1  Parker 
C.  C.  (N.  Y.)  154. 

2  State  v.  Johnson,  1  Ired.  (N.  C.)  354. 

8  Price  v.  State,  36  Miss.  531 ;  State  ».  Hildreth,  9  Ired.  (N.  C.)  429. 

4  United  States  v.  Mingo,  2  Curtis  C.  C.  1 ;  State  v.  Underwood, 
67  Mo.  40. 

6  Com.  v.  Mosler,  4  Barr  (Pa.),  264. 

e  State  t\  McCarty,  1  Speer  (S.  C),  384;  Rex  v.  Haywood,  6  C. 
&.  P.  157  ;  State  v.  Moore,  69  N.  C  267. 

10 


146  CRIMINAL  LAW. 

§187.    Provocation.      Unlawful    Arrest.  —  But    there 

are  cases  where  the  provocation  does  not  produce  that 
heated  passion  of  which  we  have  just  been  speaking, 
and  where,  although  the  homicide  be  deliberately  com- 
mitted, and  is  not  shown  to  be  necessary,  the  act  is 
held  by  the  law  to  be  manslaughter  and  not  murder. 
Thus  it  has  been  held,  in  some  quite  recent  cases,  that 
where  an  unlawful  arrest  is  attempted  or  made,  the 
party  pursued  or  arrested  may  kill  his  assailant,  either 
in  resistance  to  the  arrest  or  in  the  attempt  to  escape, 
although  the  act  be  done  under  such  circumstances  as 
would  equal  or  surpass,  in  point  of  atrocity  and  moral 
turpitude,  many  cases  recognized  as  murder.1 

This  doctrine,  however,  does  not  meet  with  universal 
approval,  and  it  is  held  in  other  cases  that  the  mere 
fact  that  an  attempted  arrest  is  unlawful  does  not 
necessarily  reduce  the  killing  of  the  officer  to  man- 
slaughter. In  such  case,  the  assailed  party  may  use 
such,  and  only  such,  reasonable  force,  in  proportion  to 
the  injury  threatened,  as  is  necessary  to  effect  his  es- 
cape. This,  however,  does  not  warrant  him  in  the  use 
of  a  deadly  weapon,  if  he  has  no  reason  to  apprehend 
a  greater  injury  than  a  mere  unlawful  arrest.2  And 
probably  the  killing  in  such  case,  with  express  malice, 
would  be  held  to  be  murder.3  So,  in  defence  of  one's 
own  house,  or  his  castle,  the  law  will  not  justify  a 
killing  of  the  assailant,  unless  the  assault  be  of  such  a 
nature  as  to  threaten  death  or  great  bodily  harm  to 

i  Com.  v.  Carey,  12  Cush.  (Miss.)  246;  Rafferty  v.  People,  69  I1L 
111. 

2  Galvin  v.  State,  6  Cold.  (Tenn.)  28a 
8  Roberts  v.  State,  14  Mo.  138. 


HOMICIDE.  147 

the  inmate.  A  mere  threatened  injury  to  the  house, 
which  docs  not  also  threaten  the  personal  safety  of  the 
inmates,  does  not  make  necessary,  and  therefore  does 
not  justify,  the  killing  of  the  assailant  to  prevent  the 
possible  injury.  A  mere  trespass  upon  the  property, 
without  a  felonious  purpose,  cannot  be  repelled  by 
taking  the  life  of  the  assailant.1 

§  13S.  The  Death  must  be  the  Direct  Result  of  the 
Unlawful  Act.  —  It  was  formerly  held  that  if  a  witness, 
by  false  testimony,  with  the  express  purpose  of  taking 
life,  procure  the  conviction  and  execution  of  a  pris- 
oner, this  would  be  murder  by  the  false  witness.  But 
aside  from  the  fact  that  the  direct  connection  between 
the  testimony  and  the  execution  could,  in  few  if  any 
cases,  be  shown  with  that  certainty  of  proof  required 
in  criminal  cases,  the  perils  of  such  a  rule  would  tend 
to  deter  honest  witnesses  from  testifying  to  what  they 
believe  to  be  true.  The  injury  to  society,  to  say 
nothing  of  the  injustice  of  such  a  rule,  is  so  out  of 
proportion  to  any  possible  advantage,  that  modern 
jurisprudence  has  discarded  it. 

So,  though  one  who  owes  a  personal  public  duty  may 
incur  criminal  responsibility  by  neglecting  it,  yet  where 
road  commissioners,  whose  duty  it  was  to  keep  a  road 
in  repair,  with  power  to  contract,  neglected  to  con- 
tract, and  suffered  the  road  to  become  out  of  repair,  it 
was  held  that,  when  injury  resulted  from  the  want  of 
repair,  neglect  to  contract  was  not  the  cause  of  the 
injury,  in  such  a  sense  as  to  be  imputable  to  their 
neglect.  - 

i  State  v.  Patterson,  45  Vt.  308.    See  also  Carroll  v.  State,  23  Ala. 
28  ;  1  Russell  on  Crimes,  447,  502  ;  post,  §  148. 
-  Reg.  v.  Pocock,  17  Q.  B.  34 


148  CRIMINAL  LAW. 

Where  death  follows  a  wound  adequate  to  produce 
it,  the  wound  will  be  presumed  to  be  the  cause,  unless 
it  be  shown  that  the  death  was  the  result  of  improper 
treatment,  or  some  other  cause,  and  not  of  the  wound.1 
The  wound  being  an  adequate,  primary,  or  contributory 
cause  of  the  death,  the  intervention  of  another  cause, 
preventing  possible  recovery  or  aggravating  the  wound, 
will  not  relieve  the  defendant.  If  death  be  caused  by 
a  dangerous  wound,  or  from  a  disease  produced  by  the 
wound,  gross  ignorance  or  carelessness  of  the  deceased 
and  his  attendants  in  its  treatment  does  not  relieve 
the  party  who  inflicted  the  wound  from  responsibility.2 
But  death  from  a  cause  independent  of  the  wound 
will.3  Mortal  illness,  either  from  a  prior  wound  or 
other  cause,  is-  no  excuse  for  one  who  produces  death 
by  another  independent  wound  or  other  source.4  But 
it  will  be  no  excuse  to  show  that  if  proper  treatment 
had  been  had  the  death  would  not  have  ensued.5  If 
death  is  the  result  of  prior  fatal  disease,  though  has- 
tened by  a  wound,  the  person  inflicting  the  wound  is 
not  responsible  for  the  death.6  It  is  also  said  that 
it  is  not  murder  to  work  on  the  imagination  so  that 
death  ensues,  or  to  excite  the  feelings  so  as  to  produce 
a  fatal  malady.7     But  it  is  apprehended  that  if  the 

1  Parsons  v.  State,  21  Ala.  300;  Com.  v.  Hackett,  2  Allen  (Mass.), 
136. 

2  Bowles  v.  State,  58  Ala.  335;  Kee  v.  State,  28  Ark.  155. 

s  Com.  v.  Costley,  118  Mass.  1 ;  State  v.  Scates,  5  Jones  (N.  C),  423; 
Com.  v.  Hackett,  2  Allen  (Mass.),  126. 
*  People  v.  Ah  Fat,  48  Cal.  61. 
6  1  Hale  P.  C.  428. 

«  Livingston  v.  Com.,  14  Gratt.  (Va.)  572. 
1  1  Hale  P.  C.  425. 


HOMICIDE.  149 

death  be  traceable  to  the  acts  done  as  the  direct  and 
primary  cause,  and  if  it  can  be  shown  that  the  acts  done 
were  done  for  the  purpose  of  accomplishing  the  result, 
it  would  be  murder.  The  question  must  always  be 
whether  the  means  were  designedly,  or,  in  the  sense  of 
the  law,  maliciously  and  successfully  used  to  produce 
the  result.  If  they  were,  then  the  guilt  of  murder  is 
incurred  ;  otherwise,  life  might  be  deliberately  taken  by 
some  means,  with  impunity.  To  deliberately  frighten 
one  to  death  must  be  as  much  murder  as  to  choke  or 
starve  him.1  The  difficulty  of  proof  that  death  results 
from  a  particular  cause  constitutes  sufficient  reason 
for  caution  ;  but  if  the  truth  be  clear,  the  law  should 
not  fail  to  attach  the  penalty.2  An  indictment  charging 
that  the  prisoner  caused  the  death  by  some  means  un- 
known (and  therefore  undescribed)  to  the  grand  jury, 
is  sufficient  upon  which  to  find  a  verdict  of  guilty  of 
murder,  if  the  case  will  not  admit  of  greater  certainty 
in  stating  the  means  of  causing  the  death.3 

Though  it  was  formerly  doubted  by  some  distin- 
guished judges,  it  seems  now  to  be  settled  that  the  mere 
omission  to  do  a  positive  duty,  whereby  one  is  suf- 
fered to  starve  or  freeze,  or  to  suffocate  or  otherwise 
perish,  is  manslaughter,  if  merely  heedlessly  done  ; 
while  it  is  murder,  if  the  omission  is  with  intent  to 
bring  about  the  fatal  result.4 

§  139.  Unlawfulness.  —  The  unlawfulness  which  is  a 
necessary  ingredient  in  the  crime  of  murder  or  man- 

1  See  2  Bishop  Cr.  Law,  §§  642,  643,  and  note  2  to  §  643. 

2  But  see  Whart.  Horn.  §§  308-372,  and  notes. 
8  Com.  v.  Webster,  5  Cusli.  (Mass.)  295. 

*  Reg.  v.  Conde,  10  Cox  C.  C.  547. 


150  CRIMINAL  LAW. 

slaughter    may   arise   out   of  the    mode   of   doing   a 
lawful  act.     Thus,  if  one  is  engaged  in  the  repair  of 
a  building  situated  in  a  field  away  from  any  street, 
and  where  there  is  no  reason  to  suppose  people  may  be 
passing,  and  being  upon  the  roof,  and  in  ignorance  of 
the  fact  that  any  person  is  below,  throws  down  a  brick 
or  piece  of  timber,  whereby  one  not  known  or  supposed 
to  be  there  is  killed,  the  act  being  in  itself  lawful  and 
unattended  with  any  degree  of  carelessness,  he  is  guilty 
of  no  offence.     The  death  is  the  result  of  accident  or 
misadventure.     If  we  suppose  the  circumstances  to  be 
somewhat  changed,  and  the  building  to  be  situated 
upon  the  highway  in  a  country  town,  where  passen- 
gers are  infrequent,  and  the  same  act  is  done  with  the 
same  result,  the  precaution,  however,  being  taken  of  first 
looking  to  see  if  any  one  is  passing,  and  calling  out 
to  give  warning  of  danger,  the  killing  would  still  be  by 
misadventure,  and  free  from  guilt,  because  the  act  done 
is  lawful  and  with  due  care.    Yet  were  the  same  act  to 
be  done  in  a  populous  town  where  people  are  known 
to  be  continually  passing,  even  though  loud  warning 
were  to  be  given,  and  death  should  result,  it  would 
be  manslaughter  ;  and  if  no  warning  at  all  were  given, 
it  would  be  murder,  as  evincing  a  degree  of  reckless- 
ness amounting  to  general  malice  towards  all.1     So 
when  a  parent  is  moderately  correcting  his  child,  and 
happens  to  occasion  his  death,  it  is  only  misadventure  ; 
for  the  act  of  correction  is  lawful.     But  if  he  exceeds 
the  bounds  of  moderation  either  in  the  manner,  the 
instrument  used,  the  quantity  of  punishment,  or  in 
any  other  way,  and  death  ensues,  it  is  manslaughter 

i  4  Bl.  Com.  192. 


HOMICIDE.  151 

at  least,  and,  under  circumstances  of  special  atrocity, 
might  be  murder.1  The  same  act,  therefore,  which 
under  certain  circumstances  would  bo  lawful  and 
propci-,  and  involve  no  guilt  even  if  death  should 
ensue,  might  under  other  circumstances  involve  the 
guilt  of  manslaughter  or  even  murder.2 

The  condition  of  the  person  ill-treated,  as  where, 
being  in  a  debilitated  condition,  he  is  compelled  to 
render  services  for  which  he  is  for  the  time  being 
incompetent,  is  often  a  controlling  circumstance  in 
determining  the  guilt  of  the  offender.3 

So  though  one  is  not  in  general  criminally  liable 
for  the  death  of  a  servant  by  reason  of  the  insufficiency 
of  food  provided,  yet  if  the  servant  be  of  such  tender 
age,  or  of  such  bodily  or  mental  weakness,  as  to  be 
unable  to  take  care  of  himself,  or  is  unable  to  with- 
draw from  his  master's  dominion,  the  master  may  be 
criminally  responsible.4 

§  140.  Negligence.  Carelessness.  —  The  point  at 
which,  in  the  performance  of  a  lawful  act,  one  passes 
over  into  the  region  of  unlawfulness  is  so  uncertain, 
the  line  of  demarcation  is  so  shadowy,  that  it  has 
been,  and  from  the  very  nature  of  the  case  must 
continue  to  be,  a  most  prolific  source  of  legal  contro- 
versy. It  is  often  said  that  the  negligence  or  careless- 
ness must  be  so  gross  as  to  imply  a  criminal  intent  ; 
but  the  question  still  is,  when  it  reaches  that  point,  and 

i  4  Bl.  Com.  182. 

2  State  v.  Vance,  17  Iowa,  138;  Ann  v.  State,  11  Humph.  (Tenn.) 
150;  Com.  v.  York,  9  Met.  (Mass.)  93;  State  v.  Harris,  63  N.  C.  1. 

8  United  States  v.  Freeman,  4  Mason  C.  C.  505 ;  Com.  r.  Fox,  7 
Gray  ( Mass.),  585. 

*  Reg.  v.  Smith,  10  Cox  C.  C.  82. 


152 


CRIMINAL  LAW. 


no  rule  by  which  to  test  it  has  been  or  can  be  given. 
Each  particular  case  must  be  determined  upon  its  par- 
ticular circumstances  ;  and  precedents,  though  multitu- 
dinous, are  so  generally  distinguishable  by  some  special 
circumstance,  that  in  a  given  case  they  seldom  afford 
any  decisive  criterion,  though  in  many  instances  they 
may  afford  substantial  aid.1  Self-defence  is  lawful,  but, 
if  carried  beyond  the  point  of  protection,  it  becomes  in 
its  turn  an  assault,  unlawful  and  criminal.  If  a  man 
has  a  dangerous  bull  and  do  not  tie  him  up,  but  leaves 
him  at  liberty,  according  to  some  opinions,  says  Haw- 
kins, he  is  guilty  of  murder,2  but  certainly  of  a  very 
gross  misdemeanor,  if  a  man  is  gored  to  death  by  the 
bull.3  On  the  other  hand,  says  Mr.  Justice  Willes, 
if  the  bull  be  put  by  the  owner  into  a  field  where 
there  is  no  footpath,  and  some  one  else  let  the  bull 
out,  and  death  should  ensue,  the  owner  would  not  be 
responsible.  Yet,  doubtless,  guilt  or  innocence,  and 
the  degree  of  guilt,  would  depend  upon  what,  under  all 
the  circumstances,  the  owner  had  reason  to  believe 
might  be  the  result  of  his  act,  whether  or  not  it 
would  be  inappreciably,  appreciably,  or  in  a  higher 
degree,  hazardous  to  the  lives  of  others.  And  this 
again  would  depend  upon  a  variety  of  circumstances, 
—  as  the  degree  of  viciousness  of  the  bull ;  the  time, 
whether  day  or  night,  when  he  might  be  put  in  the 
field  ;  the  probability  that  he  might  be  let  out,  or  that 
some  one  would  pass  through  the  field  ;  the  size  of 
the  field ;  its  nearness  to  or  remoteness  from  a  popu- 


1  See  Reg.  v.  Shepard,  L.  &  C.  147. 

2  1  P.  C.  c.  31,  §  8. 

8  Reg.  v.  Spencer,  10  Cox  C.  C.  625. 


HOMICIDE.  lo3 

lous  neighborhood  ;  and  many  others  which  might  he 
suggested  but  which  cannot  be  foreseen  or  properly 
estimated  except  in  their  relation  to  other  concomi- 
tant circumstances.1 

Carelessness  in  a  physician,  whether  licensed  or  un- 
licensed, may  he  criminal,  if  it  be  so  gross  and  reckless 
as  amounts  to  a  culpable  wrong  and  shows  an  evil 
mind.2 

And  it  seems  that  gross  ignorance  may  be  ; 3  and 
that,  though  the  intent  be  good,  one  who  is  not  a  reg- 
ularly educated  physician  has  no  right  to  hazard  medi- 
cine of  a  dangerous  character,  unless  it  be  necessary.4 
But  this,  doubtless,  would  depend  upon  the  intent,  de- 
gree of  intelligence,  and  other  circumstances.  Reckless 
disregard  of  consequences  would  be  criminal  in  a  regu- 
larly educated  physician,  while  the  best  efforts  of  a 
pretender,  made  in  good  faith,  and  in  an  emergency 
would  be  entirely  free  from  fault.5  And  if  a  mau 
voluntarily  undertakes  to  perform  the  duties  of  a 
position  to  which  he  is  unsuited  by  his  ignorance,  he 
cannot  avail  himself  of  the  plea  of  ignorance  as  an 
excuse.  So  held  in  the  case  of  an  engineer  of  a  steam- 
boat.6 

§  141.  Neglect  of  Duty.  —  The  refusal  or  omission 
to  act  when  legal  duty  requires  may  be  as  criminal  as 

1  See  for  cases  illustrative  upon  this  point  the  valuable  and  elabo- 
rate note  of  Judge  Bennett  to  Rex  v.  Hull,  1  Leading  Cr.  Cas.  50. 

2  Reg.  v.  Spencer,  10  Cox  C  C.  525 ;  Rex  r  Van  Butchell,  3  CI 
&  P.  626  ;  Rice  v.  State,  8  Mo.  561. 

s  Rex  r.  Spiller,  5  C.  &  P.  629. 

4  Simpson's  Case,  1  Lewin,  172. 

6  Com.  r.  Thompson,  6  Mass.  134  ;  1  Hawk    P.  C   c.  81,  §  02. 

6  United  States  v.  Taylor,  6  McLean  0.  C.  242 


154  CRIMINAL  LAW. 

an  act  positively  committed.  Thus,  where  it  was  the 
dut)r  of  a  miner  to  cause  a  mine  to  be  ventilated,  and 
he  neglected  to  do  it,  and  as  a  consequence  the  fire- 
damp exploded,  causing  the  death  of  several  persons, 
this  was  held  criminal,1  and  it  would  be  murder  if  the 
result  was  intended.2  So  an  engineer,  by  whose  omis- 
sion of  duty  an  explosion  takes  place,3  or  a  railway 
train  runs  off  the  track  ;4  or  any  person  bound  to  pro- 
tect, succor,  or  support,  neglects  his  duty,  whereby 
death  ensues,  is  criminally  liable.5 

§  142.  Self-defence.  Necessity.  —  The  limitations  to 
the  exercise  of  the  right  of  self-defence  have  already 
been  stated  under  the  title  of  Assault.  To  what  has 
there  been  said  it  should  be  here  added  that  it  was  the 
ancient,  and  by  the  weight  of  authority  it  is  the  modern 
doctrine,  that  before  the  assaulted  party  will  be  justi- 
fied in  availing  himself  of  such  means  of  self-defence 
as  menace  the  life  of  his  assailant,  he  must  retreat, 
except,  perhaps,  in  defence  of  one's  dwelling-house,6 
if  it  can  be  done  with  safety.  He  must  not  avail  him- 
self of  the  right  to  kill  his  assailant,  if  he  can  escape 
with  safety  to  himself,  the  extreme  necessity.  The 
point  of  honor,  that  retreating  shows  cowardice,  is 
of  less  public  concern  than  would  be  the  extension  of 

i  Reg.  v.  Haines,  2  C.  &  K.  368. 

2  Reg.  v.  Conde,  10  Cox  C.  C.  547. 

3  United  States  v.  Taylor,  5  McLean  C.  C.  242. 

4  Reg.  v.  Benge,  4  F.  &  F.  504. 

6  State  v.  Hoit,  3  Fost.  (N.  H.)  355;  Reg.  v.  Mabbett,  5  Cox  C.  C. 
339;  State  v.  Shelledy,  8  Iowa,  477;  State  v.  O'Brien,  32  N.  J.  169. 
See  also  Judge  Bennett's  note  to  Reg.  v.  Lowe,  in  1  Leading  Cr. 
Cas.  60,  where  the  cases  illustrative  of  this  point  are  very  fully  col- 
lected and  stated. 

6  See  post,  §  143. 


HOMICIDE.  155 

the  right  to  take  the  life  of  another  beyond  the  limit 
of  clear  necessity.1  Perhaps  the  tendency  <>['  modern 
decisions  is  toward  less  strictness  in  requiring  the  as- 
sailed party  to  retreat ;  and  to  hold  that  a  man  who, 
entirely  without  fault,  is  feloniously  assaulted  may 
kill  his  assailant,  without  first  attempting  to  avoid  the 
necessity  by  retreating,  it  being  possible  to  retreat 
with  safety.2 

"*  But  the  necessity  which  excuses  homicide  in  self- 
defence  is  not  a  justification  of  the  party  who  seeks 
and  brings  on  the  quarrel  out  of  which  the  necessity 
arises.3  He  cannot  excuse  himself  by  a  necessity 
which  he  has  himself  created.  Nor  can  he  be  justi- 
fied or  excused  for  a  homicide  done  upon  the  plea  of 
necessity,  if  the  necessity  arises  from  his  own  fault.S 

§  143.*  Self-defence.      Proper    Mode.  —  And    the    de-*      ,~  ^Oj.   ' 
"X  ^  <t    fence  must  be  not  only  necessary,  but  also  by  appro-  - 
.^c^    priate  means,  —  that  is  to  say ;  in  order  to  excuse  a 
j4***\   homicide  as  done  in  self-defence,  it  must  lie  made  to  m-iu^ 
^  nit  appear  that  the  taking  of  the  life  of  the  assailant  in  the  •  ^Vr^^" 
^^   mode  adopted  appeared,  upon  reasonable  grounds,  to    ^>j-cCj^f 
the  person  taking,  and  without  negligence  on  his  part,  ~?i 

i  1  Hale  P.  C  481 ;  Stoffer  v.  State,  15  Ohio  St.  n.  s.  47  ;  People 
v.  Cole.  4  Parker  C.  C.  (N.  Y.)  35;  Coffman  v.  Commonwealth,  10 
Bush  (Ky.).  495;  State  v.  Ferguson,  9  Nev.  106;  State  i>.  Hoover, 
4  1).  &  B.  (N.  C  )  305;  Vaiden  v.  Com.,  12  Gratt.  (Va.)  717;  United  w* 
States  v.  Mingo.  2  Curtis  C.  Ct.  (U.  S.)  1;  Wharton  Homicide,  §  485  c1.^-. 
et  seq.  ^ 

2  Runyan  v.  State,  57  Ind.  80;  Erwin  v.  State,  29  Ohio  St.  186.       */  '  \ 

»  State  r.  Underwood,  57  Mo.  40;  State  v.  Smith,  10  Nov.  106;     X^  ^     1  b 
Vaiden  v.  Com.,  12  Gratt.  (Va.)  717;  State  v.  Neeley,  20  Iowa,  108; 
State  v.  Hill,  2  D.  &  B.  (N.  C.)  491. 

4  People  v.  Lamb,  17  Cal.  323 ;  State  v.  Cox,  Sup.  Ct.  Ga.,  May, 
1879,  8  Keptr.  4 ;  1  Hawk.  P.  C.  c.  28,  §  22. 


156  CRIMINAL  LAW. 

necessary  to  save  himself  from  immediate  slaughter 
or  from  great  bodily  harm,  —  the  actual  existence  of 
the  danger  being  immaterial,  if  such  were  the  appear- 
ances to  him.1 

In  defence  of  property,  merely  as  property,  homicide 
is  not  excusable.  But  where  a  man's  house,  in  so  far 
as  it  is  his  asylum,  or  his  property,  is  assailed,  and  in 
such  a  manner  that  his  personal  security  is  threatened, 
or  that  of  those  whom  he  has  the  right  to  protect,  and 
the  assault  may  be  said  to  be  in  some  sense  an  assault 
upon  him,  and  to  threaten  his  life,  or  to  do  him,  or 
those  he  has  the  right  to  protect,  some  great  bodily 
harm,  it  will  be  held  excusable.  But  the  excuse  rests 
upon  the  fact  that  personal  injury  is  threatened.  The 
law  does  not  allow  human  life  to  be  taken  except  upon 
necessity.  You  may  kill  to  save  life  or  limb ;  to  pre- 
vent a  great  and  atrocious  crime,  —  a  felony  open 
and  forcible ;  and  in  the  discharge  of  a  legal  public 
duty.  But  one  man  cannot  be  excused  for  intention- 
ally killing  another  for  a  mere  trespass  upon  his  prop- 
erty.2 

It  is  said  in  some  cases  that  if  a  man  be  assaulted  in 

1  United  States  v.  Mingo,  2  Curtis  C.  C.  1 ;  People  v.  Lombard, 
17  Cal.  316 ;  Stewart  v.  State,  1  Ohio,  n.  s.  66 ;  State  v.  Sloane,  47 
Mo.  604 ;  State  v.  Harris,  59  Mo.  550 ;  Coffman  v.  Com.,  10  Bush 
(Ky.),  495;  Yates  v.  People,  32  N.  Y.  500 ;  Com.  v.  Drum,  58  Pa.  St. 
9;  State  v.  Chopin,  10  La.  An.  458;  Munden  v.  State,  37  Texas,  353 ; 
Hurd  v.  People,  25  Mich.  405 ;  Pistorious  v.  Com.,  84  Pa.  St.  158 ; 
Darling  v.  Williams,  Ohio,  1879,  8  Reptr.  179.  This  we  think  to  be 
the  law,  by  the  weight  of  authority.  But  there  are  cases  to  the  con- 
trary. The  cases  are  collected  and  thoroughly  discussed  in  Wharton 
Homicide,  §  493  et  seq. 

*  State  v.  Patterson,  45  Vt.  49;  State  v.  Vance,  17  Iowa,  138; 
State  v.  Underwood,  57  Mo.  40 ;  1  Bishop  Cr.  Law,  §  857,  and  cases 
there  cited ;  ante,  §  137 ;  post,  §  146 ;  Wharton  Homicide,  §  414  et  seq. 


HOMICIDE.  157 

his  dwelling-house,  he  is  not  bound  to  retreat  in  order 
to  avoid  the  necessity  of  killing  his  assailant,  and  that 
an  assault  upon  one  in  his  dwelling-house  is  thus  dis- 
tinguished from  an  assault  upon  him  elsewhere.1  This 
assault  in  one's  dwelling-house  may  be  in  some  sense 
an  assault  upon  the  person  actually  in  charge.2 

§  144.  struggle  for  Life.  —  Blackstone8  approves  the 
case,  put  by  Lord  Bacon,  of  two  persons  being  at  sea 
upon  a  plank  which  cannot  save  both,  and  one  thrusting 
the  other  off,  as  a  case  of  excusable  homicide.  But  it 
is  difficult  to  see  where  one  gets  the  right  to  thrust  the. 
other  off.  The  right  of  self-defence  arises  out  of  an 
unlawful  attack  made  on  one's  personal  security,  not 
out  of  accidental  circumstances,  which,  whether  threat- 
ening or  not  to  the  life  of  one  or  more  persons,  are  in 
no  way  attributable  to  the  fault  or  even  the  agency  of 
either.  Two  men  may,  doubtless,  under  such  circum- 
stances struggle  for  the  possession  of  the  plank  until 
one  is  exhausted  ;  but  neither  can  have  the  right  to 
shoot  the  other  to  make  him  let  go,  because  no  right 
of  him  who  shoots  is  invaded. 

§  145.  Accident.  —  Homicide  is  also  excusable 
where  it  happens  unexpectedly,  without  intention, 
and  by  accident,  or,  as  the  old  law  has  it,  by  misad- 
venture in  the  performance  of  a  lawful  act  in  a  proper 
manner ;  as  where  one  is  at  work  with  a  hatchet  and 
the  head  flies  off  and  kills  a  bystander  ; 4  so  if  a  physi- 

1  Pond  v.  People,  8  Mich.  150;  State  v.  Martin,  30  Wis.  216;  Bo- 
hannon  v.  Com.,  8  Bush  (Ky.),  481. 

2  State  v.  Patterson,  ubi  supra. 
*  4  Bl.  Com.  186. 

«  4  Bl.  Com.  182. 


158  CRIMINAL  LAW. 

cian,  in  good  faith,  prescribes  a  certain  remedy  which, 
contrary  to  expectation  and  intent,  kills,  instead  of 
curing.1  But  if  the  lawful  act  be  performed  in  so  im- 
proper a  manner  as  to  amount  to  culpable  carelessness, 
then  the  homicide  becomes  manslaughter.2 

§  146.  Prevention  of  Felony.  —  Homicide  in  the  pre- 
vention of  felony  is  not  strictly  homicide  in  self-defence, 
or  in  the  defence  of  property,  but  rests  upon  the  duty 
and  consequent  right  which  devolves  upon  every  good 
citizen  in  the  preservation  of  order,  and  is  upon  these 
grounds  excusable.3  Yet  not  every  felony  may  be  thus 
prevented,  but  only  those  open  felonies,  accompanied 
by  violence,  which  threaten  great  public  injury  not 
otherwise  preventable.  Secret  felonies,  unaccompanied 
by  force,  such,  for  instance,  as  forgery  or  secret  theft, 
and  offences  generally  sounding  in  fraud,  cannot  be 
thus  prevented.4  Even  if  the  crime  about  to  be  com- 
mitted do  not  amount  to  a  felony,  if  it  be  of  such 
forceful  character  as  to  be  productive  of  the  most 
dangerous  and  immediate  public  consequences,  —  a 
riot,  for  instance,  —  it  is  held  that  death  may  be  in- 
flicted even  by  a  private  citizen,  if  necessary  to  prevent 
or  suppress  it.5  Indeed,  a  riot  is  a  sort  of  general  as- 
sault upon  everybody,  and  so  resistance  may  be  made 
upon  the  ground  of  self-defence. 

i  4  Bl.  Cora.  197. 
2  4  Bl.  Com.  192 ;  ante,  §  139. 
8  Pond  v.  People,  ubi  supra. 

4  Ibid.;  Priester  v.  Angley,  5  Rich.  (S.  C.)  Law,  44;   State  v. 
Vance,  17  Iowa,  144  ;  State  v.  Moore,  31  Conn.  479. 
6  Patterson  v.  People,  18  Mich.  314. 


KIDNAPPING.    LARCENY.  159 

"JcC     "     /^;y        KIDNAPPING.  SD 

t-^M^/cx^  §  247.  Kidnapping  is  defined  by  Blackstone  as  the 
{forcible  abduction  or  stealing  away  of  a  man,  woman, 
or  child  from  their  own  country  and  sending  them 
away  to  another.1  And  this  definition  has  been 
adopted  with  the  modification  that  the  carrying  away 
need  not  be  into  another  country.2  It  is  false  impris- 
onment, with  the  element  of  abduction  added.3  And 
here,  as  in  false  imprisonment,  fraud  or  fear  may 
supply  the  place  of  force.4 

I     ;   ;   & 

LARCENY.  Y]    " 

D  ■    '-  ■ 

§  148.   Larceny  is  commonly  defined  to  be  the  felo-  ^    I      j 
nious  taking  and  carrying  away  of  the  personal  goods  ^  xVo^  i  . 
of  another.5     Notwithstanding   the   frequency  of  tho  \^„_^o  ^^ 
offence,  neither  law-writers    nor  judges   are   entirely  «■*  ?«^--" 
agreed  on  its  exact  definition,  and  as  in  case  of  "  as- 
sault,"  it  is  still  a  matter  of  debate.6     It  seems  to  be 
agreed,  however,  that  the  definition  given  above  is  ac-  r  <++*****■*' 
curate,  so  far  as  it  goes.  §u  v~  b 

Formerly,  larceny  was  either  petit,  or  larceny  of  prop-    _ 
erty  the  value  of  which  did  not  exceed  a  certain  sum,  —  •^^p^^ 
twelve  pence,  —  and  grand,  or  larceny  of  property  the  '      ,^'r^ 
value  of  which  exceeded  that  sum;  a  distinction  which ^V>D* 


J  4  Bl.  Com.  210;  Chick  v.  State,  3  Texas,  282.  dLrf^^V 

2  State  v.  Rollins,  8  N.  H.  550.  r^T^L^  *Uv*1 


s  Chick  p.  State,  8  Texas,  282.  ^^ZTL  Y^ 

*  Moody  v.  People,  20  111.  815;  Hadden  v.  People,  25  N.  Y.  373  ;    -^  ^%Vy/ 

Payson  v.  Macomber,  3  Allen  (Mass.),  69.     See  also  Abduction;       ,,      (.^ 

False  Imprisonment. 

5  4  Bl.  Com.  229. 

6  2  Bishop  Cr.  Law,  §  758  and  note. 


160  CRIMINAL  LAW. 

was  of  consequence  only  as  determining  the  degree  of 
punishment.  —  grand  larceny  being  punishable  with 
death,  while  petit  larceny  was  only  punishable  by  fine 
and  imprisonment.  Now,  however,  as  no  larceny  is 
punishable  with  death,  the  distinction  is  practically 
done  away  with.  Still  the  value  of  the  property  at  the 
present  day  determines,  to  some  extent,  the  degree  of 
punishment  to  be  inflicted  for  the  commission  of  the 
offence,  and  also  the  jurisdiction  of  the  tribunal 
which  is  to  take  cognizance,  and  hence  continues 
to  be  a  matter  material  to  be  stated  in  the  indict- 
ment. 

Larceny  is  also  simple,  or  plain  theft,  without  any 
circumstances  of  aggravation ;  or  compound,  usually 
termed  aggravated  larceny,  or  larceny  accompanied 
by  circumstances  which  tend  to  increase  the  heinous- 
ness  of  the  offence,  as  larceny  from  the  person  or 
larceny  from  the  house,  —  taking  property  from  under 
the  protection  of  the  person  or  house  being  justly 
considered  as  indicating  a  greater  degree  of  depravity 
in  the  thief  than  the  taking  of  the  same  articles  when 
not  under  such  protection. 

§  149.  Taking  and  carrying  away.  —  The  taking  and 
carrying  away  which  constitute  larceny  must  be  the 
actual  caption  of  the  property  by  the  thief  into  his  pos- 
session and  control,  and  its  removal  from  the  place 
where  it  was  at  the  time  of  the  caption.  The  posses- 
sion, however,  need  be  but  for  an  instant,  and  the  re- 
moval need  extend  no  further  than  a  mere  change  of 
place.  Thus,  if  a  horse  be  taken  in  one  part  of  a  field 
and  led  to  another,  the  taking  and  carrying  away  is 
complete ;  or  if  goods  be  removed  from  one  part  of  a 


LARCENY  161 

house,  store,  or  wagon  to  another;1  or  if  money  in  a 
drawer  or  in  the  pocket  of  a  person  be  actually  lifted 
in  the  hand  of  the  thief  from  its  place  in  the  drawer 
or  pocket,  though  not  withdrawn  from  the  drawer  or 
pocket,  and  though  dropped  or  returned  to  the  place 
from  which  it  was  lifted  or  taken  on  discovery,  after  a 
merely  temporary  possession,  however  brief,2  —  the  lar- 
ceny is  complete.  The  lifting  of  a  bag  from  its  place 
would  be  a  larceny,3  while  the  raising  it  up  and  setting 
it  on  end,  preparatory  to  taking  it  away,  would  not.4 

Taking  ordinarily  implies  a  certain  degree  of  force, 
such  as  may  be  necessary  to  remove  or  take  into 
possession  the  articles  stolen ;  but  the  enticement  or 
toling  away  of  a  horse  or  other  animal,  by  the  offer 
of  food,  is,  doubtless,  as  much  a  larcenous  taking  as 
the  actual  leading  it  away  by  a  rope  attached.5  So 
taking  by  stratagem ;  or  through  the  agency  of  an  in- 
nocent party ;  or  by  a  resort  to  and  use  of  legal  pro- 
feedings,  whereby,  under  forms  of  law,  possession  is 
got  by  a  person,  with  the  intent  of  stealing, —  is  a  suffi- 
cient taking  to  make  the  act  larcenous.6  In  such  cases 
the  fraud  is  said  to  supply  the  place  of  force.  So  is 
taking  gas  by  tapping  a  gas-pipe  larcenous.7 

1  People  v.  Johnson,  4  Denio  (N.  Y.),  364;  State  v.  Jones,  65 
N.  C.  395;  State  v.  Gazell,  30  Mo.  92. 

2  Eckels  v.  State,  20  Ohio,  n.  8.  508 ;  Com.  v.  Luckis,  99  Mass. 
431 ;  Harrison  v.  People,  50  N.  Y.  518. 

8  Rex  v.  Walsh,  Ry.  &  Moo.  C.  C.  14. 

4  Cherry's  Case,  2  Russ.  Cr.  96. 

6  State  v.  White,  2  N.  &  McC.  (S.  C.)  174;  State  v.  Wisdom, 
8  Porter  (Ala.),  511. 

«  Rex  v.  Summers,  3  Salk.  194;  Com.  v.  Barry,  125  Mass.  390. 

'  Cora.  v.  Shaw,  4  Allen  (Mass.),  308;  Reg.  t;.  Firth,  Law  Rep. 
1  C  C.  172. 

11 


162  CRIMINAL  LAW. 

But  where  title  as  well  as  possession  is  secured  by- 
consent  obtained  by  fraud,  it  is  held,  as  we  shall  here- 
after see,  that  the  fraud  is  not  the  equivalent  of 
force.1 

§  150.  Taking.  Finding  Lost  Property.  —  Lost  prop- 
erty found  and  appropriated  may,  under  certain  cir- 
cumstances, be  said  to  be  taken.  Thus,  if  a  person 
find  a  piece  of  personal  property,  about  which  there 
are  marks  or  circumstances  which  afford  a  clew  to  the 
ownership,  and  from  which  he  has  reason  to  believe 
that  inquiry  might  result  in  ascertaining  the  owner- 
ship, and  immediately  upon  finding,  without  inquiry, 
appropriate  it  to  his  own  use,  this  is  a  taking  suffi- 
cient to  constitute  the  act  larceny.  On  the  other 
hand,  if  there  be  no  mark  or  circumstance  giving 
any  reason  to  suppose  that  the  ownership  can  be  ascer- 
tained, an  immediate  appropriation  is  not  a  taking 
which  is  larcenous.2  If  there  is  not  a  purpose  at  the 
time  of  finding  to  appropriate,  a  subsequent  appropria- 
tion will  not  amount  to  larceny.3 

§  151.  Property  left  by  Mistake.  —  It  is  important  to 
observe  the  distinction  between  lost  and  mislaid  prop- 
erty. In  the  latter  case,  as  where  a  customer  uninten- 
tionally leaves  his  purse  upon  the  counter  of  a  store,4 
and  the  trader  takes  it  and  appropriates  it  to  his  own 
use  without  knowing  whose  it  was,  or  a  passenger  un- 
intentionally leaves  his  baggage  at  a  railway  station,0 

i  Post,  §  155. 

2  Com.  v.  Titus,  116  Mass.  45;  8.  c.  1  Am.  Cr.  Repts.  (Hawley), 
416,  and  note ;  Reed  v.  State,  Ct.  of  App.  Texas,  1880,  10  Reptr.  26. 
a  Ibid. ;  Baker  v.  State,  29  Ohio  St.  184. 
*  Reg.  v.  West,  6  Cox  C.  C.  415. 
6  Reg.  v.  Pierce,  6  Cox  C.  C.  117. 


LARCENY.  163 

and  a  servant  of  the  company,  whose  duty  it  is  to  re- 
port the  fact  to  his  superior,  neglects  to  do  so,  and 
appropriates  the  baggage  to  his  own  use,  the  act  in 
each  case  is  larceny,  because  there  was  a  likelihood 
that  the  owner  would  call  for  the  property,  and,  there- 
fore, in  neither  case,  at  the  time  of  appropriation, 
was  the  property  strictly  lost  property.  There  was  a 
probability  known  to  the  taker  in  each  case  that  the 
owner  might  be  found,  i.  e.  would  appear  and  claim 
property  which  he  had  by  mistake  left.  So  if  a  person 
convert  to  his  own  use  property  left  with  him  by  mis- 
take, and,  as  he  knows,  intended  for  another  person, 
this  is  larceny.1 

So  where  one  receives  from  another  —  the  delivery 
being  by  mistake  and  therefore  unintentional  —  a  sum 
of  money  or  other  property,  and  the  receiver  at  the 
time  knows  of  the  mistake,  yet  intends  to  keep  it  and 
to  appropriate  it  to  his  own  use,  this  is  a  taking  suffi- 
cient to  constitute  larceny ;  as  where  a  depositor  in 
a  savings  bank,  presenting  a  warrant  for  ten  dollars, 
receives  through  a  mistake  of  the  clerk  a  hundred 
dollars.2 

§  152.  Taking.  Servant.  —  Where  property  is  taken 
by  a  servant,  in  whose  custody  it  is  placed  by  the 
master,  as  of  goods  in  a  store  for  sale,  or  of  horses  in 
a  stable  for  hiring,  or  of  securities  of  a  banker,  or  of 
money  in  a  table,  all  the  property  being  still  in  the  pos- 
session of  the  owner,  by  and  through  the  servant,  the 
act  of  taking  by  the  servant  is  larceny.     The  servant 

i  Wolfsten  v.  People,  13  N.  Y.  Sup.  Ct.  121. 
2  Reg.  v.  Middleton,  12  Cox  C.  C  260,  477;  8.  c.  1  Green's  Cr. 
Law  Rep.  4. 


164  CRIMINAL  LAW. 

has  custody  merely  for  the  owner,  who  has  the  pos- 
session and  property.1 

§  153.  Taking.  Bailee.  —  The  appropriation  by  a  car- 
rier,  however,  or  other  bailee  of  property  of  which  he 
lias  possession,  and  in  which  he  has  a  quasi  property, 
is  embezzlement  and  not  larceny.2  The  possession  of 
a  servant  is  different  from  that  of  a  bailee.  That  of 
the  former  is  mere  custody,  while  that  of  the  latter 
is  a  real  possession.  Thus,  money  in  the  till  is  in  the 
possession  of  the  master  but  in  the  custody  of  the 
clerk.3  But  where  property  is  delivered  to  another 
who  is  not  his  servant,  to  be  kept,  the  possession  is 
in  the  employe"  as  a  trustee,  and  if  he  fraudulently 
converts  it,  it  is  embezzlement  and  not  larceny.4 

But  it  has  been  held  that  if  the  bailee  do  any  act 
which  violates  the  trust,  as  where  a  carrier  breaks  open 
a  package  delivered  to  him  for  transportation  and  ab- 
stracts a  part  of  its  contents,  he  thereby  terminates 
the  bailment,  and  the  act  is  larceny.5 

§  154.  Taking.  Temporary  Delivery  upon  Conditions. 
—  If,  however,  the  property  be  delivered  merely  for  a 
temporary  purpose,  without  intention  to  part  with  it 
or  the  possession,  except  upon  certain  implied  condi- 
tions, as  where  a  trader  hands  a  hat  over  his  counter 
to  a  customer  for  the  purpose  of  examination,  and  the 

i  Com.  v.  Berry,  99  Mass.  428 ;   Marcus  v.  State,  26  Ind.  101 ; 
State  v.  Jarvis,  63  N.  C.  656  ;  People  v.  Belcher,  37  Cal.  61. 
2  People  v.  Dalton,  15  Wend.  (N.  Y.)  581. 
s  Ante,  §  152. 

*  State  v.  Fann,  65  N.  C.  317  ;  Ennis  v.  State,  3  Green  (N.  J.),  67. 

*  State  v.  Fairclough,  29  Conn.  47  ;  Nichols  v.  People,  17  N.  Y. 
114;  Com.  v.  Brown,  4  Mass.  580.  See  also  post,  §  159;  Com.  v. 
James,  1  Pick.  (Mass.)  375,  and  a  valuable  note  of  Mr.  Heard  to  the 
name  case,  2  Bennett  &  Heard  Lead.  Cr.  Cas.  181. 


LARCENY.  165 

customer  walks  off  with  it,  or  a  customer  hands  to  a 
trader  a  bill  out  of  which  to  take  his  pay  for  goods 
bought,  and  to  return  the  change,  and  the  trader  re- 
fuses the  change,  it  is  in  each  case  larceny.1  The 
possession  is  in  each  case  fraudulently  obtained,  which 
is  equivalent  to  a  taking  without  the  consent  of  the 
owner,  in  the  view  of  the  law.  If  the  possession  be 
fraudulently  obtained  with  intent  on  the  part  of  the 
person  obtaining  it,  at  the  time  he  receives  it,  to  con- 
vert it  to  his  own  use,  and  the  person  parting  with  it 
intends  to  part  with  his  possession  merely,  and  not 
with  his  title  to  the  property,  the  offence  is  larceny.2 

Perhaps  it  might  justly  be  said  that  in  such  cases 
the  possession  is  not  parted  with,  the  property  being 
in  such  proximity  to  the  owner  that  he  still  has  do- 
minion and  control  over  it.3 

The  law  holds,  somewhat  inconsistently,  that  if  pos- 
session only  be  obtained  by  fraud,  the  offence  is  larceny, 
but  if  possession  and  a  title  to  the  property  be  obtained 
by  fraud,  it  is  not,  as  the  fraud  nullifies  the  consent  to 
the  taking,  but  not  the  consent  that  the  title  should 
pass.  And  this  inconsistency  arises  out  of  the  doc- 
trine generally  received  that  trespass  is  a  necessary 
ingredient  in  larceny,  and  while  a  man  may  be  a  tres- 
passer who  holds  goods  by  a  possession  fraudulently 
obtained,  he  cannot  be  a  trespasser  by  holding  goods 

i  Com.  v.  O'Malley,  97  Mass.  586  ;  People  v.  CaU,  1  Denio  (N.  Y.), 
120 ;  Reg.  p.  Thompson,  9  Cox  C.  C.  244. 

2  Loomis  v.  People,  67  N.  Y.  322 ;  Hildebrand  v.  People,  56  N.  Y. 
394  ;  Rex  v.  Robson,  R.  &  R.  C.  C.  413 ;  Com.  v.  Barry,  124  Mass. 
325;  Lewer  v.  Com.,  15  S.  &  R.  (Pa.)  93;  Farrell  v.  People,  16  111. 
606  ;  State  v.  Fenn,  41  Conn.  590. 

8  Hildebrand  v.  People,  ubi  supra  ;  2  East  P.  C.  683. 


166  CRIMINAL  LAW. 

by  a  title  fraudulently  obtained.1  The  consent  of  the 
owner,  procured  by  fraud,  that  he  shall  have  title, 
takes  the  case  out  of  the  category  of  larceny.  But  if 
by  the  same  fraud  the  possession  and  title  to  goods  are 
obtained  from  a  servant,  agent,  or  bailee  of  the  owner, 
who  has  no  right  to  give  either  possession  or  title,  as 
where  a  watch-repairer  delivers  the  watch  to  a  person 
who  personates  the  owner,  it  is  larceny.2  It  is  difficult 
to  see,  except  upon  the  technical  ground  above  stated, 
wrhy  a  title  procured  by  fraud  is  any  more  by  consent 
of  the  owner  than  a  possession  so  procured.  The 
distinction  is  a  source  of  confusion,  not  to  say  a 
ground  of  reproach.3 

In  Iowa,  and  perhaps  other  States,  the  rule  that 
there  is  no  larceny  where  there  is  no  trespass,  and  no 
trespass  where  there  is  consent  obtained  by  fraud,  has 
been  abrogated  by  statute  ; 4  and  in  Tennessee  it  is 
said  that  the  fraud  constitutes  a  trespass,  such  as 
it  is.5 

§  155.  Taking  by  Owner.  —  A  general  owner  may  be 
guilty  of  larceny  of  his  own  goods,  if  at  the  time  of 
taking  he  has  no  right  to  their  possession,  as  where 
one  whose  property  has  been  attached  takes  it  awTay 
with  intent  to  deprive  the  attaching  creditor  of  his 
security.6 

i  See  2  Bishop  Cr.  Law,  §§  808-812. 
2  Ibid.;  Com.  v.  Collins,  12  Allen  (Mass.),  181. 
8  For  the  distinction  between  larceny  and  obtaining  money  by 
false  pretences,  see  ante,  §  116,  and  Loomis  v.  People,  67  N.  Y.  322. 

4  State  v.  Brown,  25  Iowa,  561. 

5  Defrese  v.  State,  3  Heisk.  53.  See  also  State  v.  Williams,  35 
Mo.  229. 

6  Com.  v.  Green,  111  Mass.  392.  See  also  Palmer  v.  People,  10 
Wend.  (N.  Y.)  166;  People  v.  Thompson,  34  Cal.  671. 


LARCENY.  167 

§  loG.  Felonious.  —  The  taking  must  also  be  felo- 
nious ;  that  is,  with  intent  to  deprive  the  owner  of 
his  property,  and  without  color  of  right  or  excuse 
for  the  taking.1  But  taking  it  for  the  purpose  of 
destroying  it,2  or  to  be  used  as  a  means  of  escape 
and  then  left,3  or  for  the  purpose  of  inducing  the 
owner  to  follow  it,4  or  to  facilitate  the  commission 
of  another  theft,  do  not  constitute  larceny.5  Taking 
property,  however,  with  a  design  to  apply  it  on  a 
note  due  to  the  taker  from  the  owner,  is  depriving 
the  owner  of  the  specific  property  ; 6  and  to  conceal  it 
from  the  owner  until  the  latter  shall  offer  a  reward 
for  its  recovery,  or  to  sell  it  at  a  reduced  price,  is  de- 
priving him  of  a  part.7  So  is  the  taking  of  a  railway 
ticket,  with  intent  to  use  it,  though  coupled  with  the 
intent  to  return  it  after  use.8 

§  157.  Taking  Lucri  Causa.  —  The  taking  need  not 
be  for  pecuniary  gain  or  advantage  of  the  thief,  if  it  is 
with  design  wholly  to  deprive  the  owner  of  his  prop- 
erty.9 Logically,  the  taking  to  one's  self  the  absolute 
and  permanent  control  and  disposition  of  the  prop- 
erty of  another,  with  no  intention  of  returning  it  to 

1  Johnson  v.  State,  36  Texas,  375 ;  State  v.  Ledford,  67  N.  C.  60 ; 
Reg.  v.  Holloway,  2  C.  &  K.  942  ;  State  v.  Smith,  4  Dutch.  (N.  J.)  28. 

2  State  v.  Hawkins,  8  Porter  (Ala.),  461 ;  post,  §  157. 

8  State  v.  York,  5  Harr.  (Del.)  493 ;  Rex  v.  Phillips,  2  East  P.  C. 
662. 

*  Rex  v.  Dickenson,  R.  &  R.  420. 
6  Rex  v.  Crump,  1  C.  &  P.  658. 

6  Com.  v.  Stebbins,  8  Gray  (Mass.),  422. 

7  Com.  v.  Mason,  105  Mass.  163. 

8  Reg.  v.  Beecham,  5  Cox  C.  C.  181. 

8  l'.ople  v.  Jaurez,  28  Cal.  380;  Reg.  v.  Jones,  t  Den.  C.  C  186; 
Hamilton  v.  State,  :>■;  Miss.  214. 


168  CRIMINAL  LAW. 

him,  is  an  addition  to  the  property  of  the  taker,  and 
in  that  sense  necessarily  a  gain  or  advantage,  without 
reference  to  the  mode  of  control  or  subsequent  dispo- 
sition. The  larceny  is  complete,  and  is  not  the  less  a 
larceny  because  it  is  committed  as  a  step  in  the  accom- 
plishment of  some  other  act,  criminal  or  otherwise.1 
Unless,  however,  it  appears  that  it  would  be  of  some 
sort  of  advantage,2  as  to  enable  him  to  make  a  gift,  or 
to  destroy  evidence  which  may  be  used  against  him,3 
the  offence  would  more  properly,  perhaps,  be  malicious 
mischief.4 

This  advantage  may  be  of  a  very  trifling  character. 
Thus,  it  was  held  in  England  6  that  where  it  was  the 
duty  of  a  servant  to  take  such  beans  as  were  doled  out 
to  him  by  another  servant,  and  split  them  and  feed 
them  to  the  horses,  and  the  former  clandestinely  took 
a  bushel  of  the  beans  and  fed  them  to  the  horses 
whole,  whereby  he  possibly  injured  his  employer's 
horse,  and  saved  labor  to  himself,  this  was  held  to 
be  a  sufficient  taking  to  constitute  larceny,  —  an  ex- 
treme case  of  doubtful  law. 

But  not  every  supposed  advantage  will  be  enough. 
A  man  who  takes  an  execution  from  an  officer  who  is 
about  to  levy  upon  his  goods,  and  keeps  it,  under  the 
mistake  that  he  can  thereby  prevent  the  levy,  hopes 
to  reap  an  advantage ;  but  such  an  act  is  no  more 

1  But  see  ante,  §  156. 

2  Reg.  v.  White,  9  C.  &  P.  344. 

3  Reg.  v.  Jones,  1  Den.  C.  C.  188 ;  Reg.  v.  Wynn,  1  Den.  C.  C. 
365  ;  Rex  v.  Cabbage,  R.  &  R.  292. 

*  Reg.  v.  Godfrey,  8  C.  &  P.  567  ;  People  v.  Murphy,  47  CaL  103  j 
State  v.  Hawkins,  8  Porter  (Ala.),  461. 
6  Rex  v.  Morfit,  R.  &  R.  30. 


LARCENY.  169 

larceny  than  the  taking  a  stick  out  of  a  man's  haii'l 
with  which  to  beat  him.1 

§158.  Taking.  Claim  of  Right.  Custom.  —  Taking 
under  a  claim  of  right,  if  the  claim  be  made  in  good 
faith,  however  unfounded  it  may  be,  is  not  larcenous.2 
But  a  custom  to  take  fruit,  as  from  boxes  of  orairj<  a 
on  board  a  vessel  in  (ran situ,  is  neither  good  in  itself, 
nor  as  a  foundation  for  a  claim  of  right.3 

§159.  Taking.  Concealment.  —  Although  the  taking 
be  open,  and  without  secrecy  or  concealment,  it  may 
still  be  theft ;  and  that  the  act  is  furtively  done  is  only 
evidence  of  the  criminal  intent.4  Yet  there  is  undoubt- 
edly in  the  popular,  if  not  in  the  legal,  idea  of  theft  — 
furtwm  —  an  element  of  secrecy  in  the  taking.5  But 
if  the  act  be  fraudulent,  and  known  to  the  taker  to  be 
without  right,  or  against  right,  it  is  immaterial  whether 
the  taking  be  open  or  secret.  Nor  does  it  seem  to  be 
essential  that  the  taker  should  be  animated  by  any 
motive  of  mere  pecuniary  gain.6  And  the  fraudulent 
purpose  —  the  element  without  which  there  can  be 
no  theft,  the  act,  in  the  absence  of  fraud,  being  only  a 
trespass  —  must  exist  at  the  time  of  the  taking.  The 
taking  must  be  with  a  fraudulent  intent.  The  taking 
without  a  fraudulent  intent,  and  a  conversion  after- 
wards with  a  fraudulent  intent,  does  not,  in  general, 
constitute  larceny.7 

i  Reg.  v.  Bailey,  L.  &  R.  1  C.  C.  347. 

2  Severance  v.  Carr,  43  N.  H.  65;  State  v.  Homes,  17  Mo.  379. 
Reg.  v.  Halford,  11  Cox  C.  C.  88;  People  v.  Carabin,  14  Cal.  438- 
Hall  v.  State,  34  Ga.  208 ;  State  v.  Fisher,  70  N.  C.  78. 

8  Com.  v.  Doaue,  1  Cush.  (Mass.)  6. 

*  State  i>.  Fenn,  41  Conn.  690. 

*  State  v.  Ledtbrd,  67  N.  C.  60. 

*  Reg.  v.  Jones,  1  Den.  C.  C.  193 ;  ante,  §  157. 

7  Wilson  v.  People,  39  N.  Y.  45'J  ;  State  v.  Sherman,  66  Mo.  8a 


170  CRIMINAL  LAW. 

It  is,  however,  held  in  some  cases  that  while,  if  the 
original  taking  be  rightful,  a  subsequent  fraudulent 
conversion  will  not  make  it  larceny,  if  the  original 
taking  be  wrongful,  as  by  a  trespass,  it  will.  Thus, 
if  a  man  hires  a  horse  in  good  faith  to  go  to  a  certain 
place,  and  afterwards  fraudulently  converts  him  to  his 
own  use,  this  is  no  larceny.  If  he  takes  the  horse 
without  leave,  and  afterwards  fraudulently  converts 
him,  this  is  larceny.1  So  if,  under  color  of  hiring,  he 
gets  possession  with  intent  to  steal.2  And  it  has  even 
been  held  by  very  high  authority  that  if  possession, 
without  intent  to  steal,  be  obtained  by  a  false  pretence 
of  hiring  for  one  place,  when  in  fact  the  party  in- 
tended to  go  to  another  and  more  distant  place,  and 
the  property  be  subsequently  converted  with  a  felo- 
nious intent,  this  is  larceny.3  So  if,  after  a  hiring 
and  completion  of  the  journey  without  felonious  in- 
tent, instead  of  delivering  the  horse  to  the  owner  the 
hirer  converts  him  to  his  own  use.4  This  case  pro- 
ceeds upon  the  ground  that  the  bailment  is  terminated. 
Upon  the  same  ground,  a  common  carrier  who  breaks 
open  a  package  committed  to  him  for  transportation 
and  takes  to  his  own  use  a  portion  of  the  contents, 
thereby  puts  an  end  to  his  baileeship,  and  becomes 
guilty  of  larceny.5     And  it  may   be  said,  generally, 

i  Com.  v.  White,  11  Cush.  (Mass.)  483;  Ileg.  v.  Riley,  Dearsley 
C  C.  149. 

2  State  v.  Gorman,  2  Nott  &  McCord  (S.  C),  99;  State  v.  Wil- 
liams, 35  Mo.  229  ;  People  v.  Smith,  23  Cal.  280.  See  also  State  v 
Fenn, 41  Conn.  590. 

3  State  v.  Coombs,  55  Me.  477. 

4  Reg.  v.  Haigh,  7  Cox  C.  C.  403. 
6  State  v.  Fairdough,  29  Conn.  47. 


LARCENY.  171 

that  a  bailee,  who  receives  or  gets  possession  with 
intent  to  steal,  or  fraudulently  converts  to  his  own 
use  after  his  right  to  the  possession  as  bailee  has 
terminated,  is  guilty  of  larceny.  In  neither  case  does 
he  hold  possession  by  consent  of  the  owner.1 

§  160.  Personal  Goods.  —  At  common  law  there 
could  be  no  larceny  of  the  realty,  or  any  part  of  it 
not  detached.  Only  personal  property  could  be  the  sub- 
ject of  larceny,  and  this,  with  few  limitations,  might 
be.  If  portions  of  the  realty  become  detached,  not  by 
natural  causes,  as  blinds  from  a  house,2  or  a  nugget 
of  gold  from  the  vein,3  they  may  become  the  subject  of 
larceny,  unless  the  detachment  or  severance  be  part 
and  parcel  of  the  act  of  taking,4  in  which  case  the 
taking  is  but  a  trespass,  —  "a  subtlety  in  the  legal 
notions  of  our  ancestors." 6  The  lapse  of  time  be- 
tween the  act  of  severance  aud  the  act  of  taking  need 
be  only  so  long  as  is  necessary  to  make  the  two  acts 
appreciably  distinct,  and  successive,  the  latter  to  the 
former.6 

So  the  milking  a  cow  and  the  plucking  of  wool  from 
a  sheep  are  larcenies  of  the  milk  and  the  wool.7  Tur- 
pentine which  has  been  collected  from  a  tree,8  illumi- 
nating gas   drawn   from  a  pipe  through  which   it   is 

i  See  2  Bishop  Cr.  Law,  §§  834,  835.     See  also  ante,  §  152. 

a  Reg.  v.  Wortley,  1  Den.  C.  C.  1G2. 

8  State  i'.  Burt,  64  N.  C  619 ;  State  v.  Berryman,  8  Nev.  262  ;  s.  c. 
and  note,  1  Green's  Cr.  Law  Rep.  335. 

!  Reg.  v.  Townley,  1  L.  R.  C.  C.  R.  315;  State  v.  Hall,  5  Harr. 
(Del.)  4!  12. 

5  4  Bl.  Com.  232. 

6  State  v.  Berryman,  ubi  supra;  Jackson  v.  State,  11  Ohio  St.  104. 
'  Rex  v.  Pitman,  2  C.  &  P.  423. 

«  State  v.  Moore,  11  Ired.  (N.  C.)  70. 


1T2  CRIMINAL  LAW. 

transmitted,1  ice  collected  in  an  ice-house,2  a  key  in 
the  lock  of  a  door,3  a  coffin,4  and  the  grave-clothes 
in  which  a  person  is  buried,6  are  also  all  subjects  of 
larceny  ;  but  not  a  dead  body.6 

Subject  to  these  qualifications,  and  to  the  few  excep- 
tions hereafter  stated,  all  articles  of  personalty  reduced 
to  possession  and  not  abandoned  —  such  as  can  be  said 
to  be  the  present  property  of  some  owner  at  the  time  of 
the  taking  —  may  be  subject-matters  of  larceny. 

Upon  the  ground  of  non-reduction  to  possession, 
sea-weed  found  floating  on  the  shore  between  high 
and  low  water  mark  cannot  be  claimed  as  belonging 
to  the  owner  of  the  fee  between  high  and  low  water 
mark,  and  it  is  no  larceny  to  take  it.7 

At  common  law,  choses  in  action  and  muniments  of 
title  generally,  being  the  evidence  merely  of  rights 
of  property  and  not  the  property  itself,  were  held  not 
to  be  subjects  of  larceny ;  and  if  the  chose  in  action  or 
muniment  of  title  was  still  a  security,  no  indictment 
could  be  had  for  the  larceny  of  the  paper  upon  which  it 
was  printed  or  written,  while,  if  it  was  functus  officii, 
and  valueless  as  a  security,  an  indictment  might  be 
had.8 

1  Com.  v.  Shaw,  4  Allen  (Mass.),  308;  Hutchinson  v.  Com.,  82  Pa. 
St.  472. 

2  Ward  u.  People,  3  Hill  (N.  Y.),  395. 

3  Hoskins  v.  Tarrance,  5  Blackf.  (Ind.)  417. 
*  State  v.  Doepke,  68  Mo.  208. 

6  Wonson  v.  Say  ward,  13  Pick.  (Mass.)  402. 

6  2  East  P.  C.  652. 

1  Reg.  v.  Clinton,  Irish  Rep.  4  C.  L.  6.  See  also  Com.  v.  Samp- 
son, 97  Mass.  407;  and  post,  §  161. 

8  Reg.  v.  Green,  6  Cox  C.  C.  296 ;  Reg.  v.  Perry,  1  Den.  C.  C.  69 ; 
Payne  v.  People,  6  Johns.  (N.  Y.)  103;  State  v.  Wilson,  3  Brev. 
(S.  C.)  196;  United  States  v.  Davis,  5  Mason  (C.  Ct.),358;  post,  §  162. 


LARCENY.  173 

In  the  absence  of  statutes,  the  courts  of  this  country 
have  been  inclined  to  follow  the  common  law.  But 
statutes  here,  as  also  indeed  in  England,  have  gener- 
ally interposed,  and  made  not  only  goods  and  chattels. 
as  by  the  common  law,  but  also  choses  in  action  and  mu- 
niments of  title,  whether  they  savored  of  realty  or  not, 
and  in  fact  almost  everything  which  constitutes  per- 
sonalty in  contradistinction  to  the  realty,  subject- 
matters  of  larceny.  Indeed,  in  many  if  not  most  of 
the  States,  the  felonious  taking  of  parts  of  the  realty 
may  be  indicted  as  larceny. 

§  161.  "Wild  Animals,  in  a  state  of  nature,  are  not 
subjects  of  larceny  ;  but  when  such  of  them  as  are  fit 
for  food,  or  for  producing  property,  have  been  re- 
claimed, or  brought  into  control  and  custody,  so  that 
they  can  be  fairly  said  to  be  in  possession,  they  then  be- 
come property,  and  may  be  stolen.  Bees,1  pea-fowl.2 
doves,3  oysters,4  when  reduced  to  possession,  belong 
to  this  category.  And  so,  doubtless,  would  fish  be,  if 
caught  and  kept  in  an  artificial  pond,  as  they  certainly 
are  if  captured  for  food  or  for  oil.6  So  if  wild  animals 
fit  for  food  are  shot,  and  thus  reduced  to  possession, 
they  become  subjects  of  larceny  ;6  but  chasing,  with- 
out capture,  gives  no  right  of  property.7 

But  dogs,  cats,  foxes,   bears,  and   the   like,  feres 

1  State  v.  Murphy,  5  Blackf.  (Ind.)  408. 

2  Com.  v.  Beaman,  8  Gray  (Mass.),  497. 

8  Com.  v.  Chace,  9  Pick.  (Mass.)  15;  Rex  v.  Brooks,  4  C.  &  P 
131. 

4  State  v.  Taylor,  3  Dutch.  (N.  J.)  117. 

5  Taber  v.  Jenny,  1  Sprague  Dec.  315. 

6  Reg.  v.  Townley,  12  Cox  C.  C.  59. 

*  Buster  v.  Newkirk,  20  Johns.  (N.  Y.)  76. 


174  CRIMINAL  LAW. 

natiirtz,  were  not  by  the  common  law,  and  are  not 
in  this  country,  subjects  of  larceny,  unless  by  some 
statute  they  are  made  so,1  or  unless  by  the  bestowal 
of  care,  labor,  and  expense  upon  them,  or  some  part  of 
them,  they  have  by  that  treatment  acquired  value  as 
property,  as  by  being  stuffed  or  skinned.2  And  it  has 
been  generally  held  that  though  they  may  by  statute 
become  property  and  subjects  of  a  civil  action,  and 
liable  to  taxation,  they  are  not  subjects  of  larceny.3 
Otherwise  in  New  York.4 

§  162.  Value.  —  The  goods  must  be  of  some  value, 
else  they  cannot  have  the  quality  of  property.  The 
common  law  held  bills,  notes,  bonds,  and  choses  in  ac- 
tion generally  as  of  no  intrinsic  value,  and  therefore 
not  subjects  of  larceny.5  Now,  by  statute,  most  of  the 
old  limitations  and  restrictions  are  done  away  with. 
Many  articles  savoring  of  the  realty,  and  most  if  not 
all  choses  in  action,  are  made  subjects  of  larceny.  The 
value  may  be  very  trifling,6  yet,  no  doubt,  must  be  ap- 
preciable,7 though,  perhaps,  not  necessarily  equal  to 
the  value  of  the  smallest  current  coin.8  It  lias  been 
held,  however,  in  Tennessee,  that  the  value  of  a  drink 
of  whiskey  is  too  small  to  lay  the  foundation  for  a 

i  2  Bl.  Com.  193  ;  Norton  v.  Larld,  6  N.  H.  203  ;  Ward  v.  State, 
48  Ala.  161. 

2  State  v.  House,  65  N.  C.  315 ;  Eeg.  v.  Gallears,  1  Den.  C.  C.  501. 

8  Norton  p.  Ladd,  ubi  supra ;  Warren  v.  State,  1  Iowa,  1G6  ;  State 
•>.  Lynus,  26  Ohio  St.  400. 

4  People  v.  Maloney,  1  Parker  C.  C.  503;  People  v.  Campbell, 
*  Parker  C.  C.  386. 

5  4  Bl.  Com.  234;  ante,  §  160. 

6  People  v.  Wiley,  3  Hill  (N.  Y.),  194. 

7  Payne  v.  People,  6  Johns.  (N.  Y.)  103. 

8  Reg.  v.  Bingley,  5  C.  &  P.  602. 


LARCENY.  17o 

complaint  fur  obtaining  goods  by  false  pretences,  upon 
the  ground  that  the  severity  of  the  penalty  shows  that 
the  legislature  could  not  have  intruded  that  the  statute 
should  apply  to  so  trivial  an  act.1 

§  163.  Ownership.  —  A  general  or  special  ownership 
by  another  is  sufficient  to  sustain  the  allegation  that 
the  property  is  his.2  Even  a  thief  has  sufficient  own- 
ership to  support  the  allegation  as  against  another 
thief.3 

§  104.  Larcenies  from  the  person,  from  a  v< 
and,  under  special  circumstances,  from  a  building,  are 
but  aggravated  forms  of  larceny,  of  statutory  growth, 
and  by  statutes  generally  similar,  but  in  particulars 
different,  arc  specially  defined,  and  made  specially 
punishable;  and  are,  so  far  as  the  larceny  is  con- 
cerned, to  be  tried  by  the  tests  heretofore  stated. 
They  are  sometimes  called  compound  larcenies,  as 
being  made  up  of  two  or  more  distinct  crimes,  —  as 
in  case  of  larceny  from  the  person,  which,  technically 
at  least,  includes  an  assault  upon  the  person, — and 
are  said  to  be  aggravated,  because  it  indicates  a 
higher  degree  of  depravity  to  take  property  from 
under  the  protection  of  the  person  or  of  the  build- 
ing, than  to  take  the  same  property  when  it  is  found 
not  under  such  protection.  There  is,  however,  the 
violation  of    the    security  of  the   person  and  of  the 

1  Chapman  v.  State,  2  Head  (Tenn.),  36. 

-  Com.  v.  O'Hara,  10  Gray  (Mass.),  460;  Reg.  v.  Bird,  9  C.  &  P. 
44;  State  V.  Gorham,  55  N.  II.  162;  State  v.  Furlong,  1H  Me.  S> ;  State 
v.  Mullen,  30  Iowa,  207  ;  People  v.  Bennett.  37  N.  Y.  117;  State  o, 
Williams,  2  Strobh.  (S.  C.)  22'J  ;  United  States  v.  Foye,  1  Curtis  C 
C.  3(34  ;  Owen  r.  State,  0  Humph.  (Tenn.)  ! 

»  Ward  r.  People,  3  Hill  (N.  Y.),  .'i'.iO. 


176  CRIMINAL  LAW. 

building,  which  enhances,  in  the  estimation  of  the  law, 
the  gravity  of  the  offence.  But  these  subdivisions  of 
the  law  of  larceny  have  become  so  general,  that  a  few 
observations  will  be  of  use. 

§  165.  Larceny  from  the  person,  though  it  can  be 
perpetrated  only  by  force,  is  nevertheless  an  offence 
requiring  no  other  but  the  mere  force  of  taking  the 
thing  stolen,  and  is  distinguishable  from  robbery,  in 
that  the  latter  is  an  offence  compounded  of  two  distinct 
offences,  —  assault  and  larceny,  —  the  assault  being, 
as  it  were,  preparatory  to  and  in  aid  of  the  larceny.1 
If,  for  instance,  a  thief  —  pickpocket  —  in  passing 
another  person  snatches  a  pocket-book  from  his  hand 
or  from  his  pocket,  this  is  larceny  from  the  person  ; 
while  if  the  thief  knocks  the  person  down  or  seizes 
him,  and  then  takes  the  pocket-book  from  his  posses- 
sion, this  is  robbery.2  Technically,  no  doubt,  larceny 
from  the  person  involves  an  assault,  but  it  is  the  mere 
force  of  taking  the  thing.  In  robbery,  the  force  or 
fear  is  prior  to  the  larceny,  and  preliminary  to,  and 
distinct  from,  the  taking.3  And  a  thing  is  said  to 
be  on  the  person  if  it  is  attached,  as  a  watch  by  a 
chain,  or  is  otherwise  so  related  to  the  person  as  to 
partake  of  its  protection.4  We  have  already  seen  that 
the  actual  taking  of  a  thing  on  the  person  in  the  hand, 
and  removing  it  from  contact  or  connection  with  the 
person,  is  a  sufficient  taking.5 

i  4  Bl.  Com.  243. 

2  Reg.  v.  Walls,  2  C.  &  K.  214 ;  Com.  v.  Dimond,  3  Cush.  (Mass.) 
235. 

a  Rex  v.  Harmon,  1  Hawk.  P.  C.  c.  34,  §  7  ;  2  Russ.  on  Crimes,  64. 
4  Reg.  v.  Selway,  8  Cox  C.  C.  235.     See  also  post,  §  166. 
s  Ante,  §  149.     See  also  Flynn  v.  State,  42  Texas,  301. 


LARCENY.  177 

§  166.  Larceny  from  Building.  —  Taking  property  in 
or  from  a  building  is  not  necessarily  larceny  in  a  build- 
ing. To  constitute  larceny  in  a  building,  the  property 
taken  must  be  in  some  sense  under  tbe  protection  of 
the  building,  and  not  under  the  eye  or  personal  care 
of  some  one  in  the  building.  Thus,  if  a  pretended 
purchaser,  having  got  manual  possession  of  a  watch 
in  a  store  for  the  purpose  of  looking  at  it,  leaves  the 
store  with  the  watch,  he  is  not  guilty  of  larceny  in  a 
building.  The  watch  having  been  delivered  into  his 
custody  for  a  special  purpose,  cannot  be  said  to  be 
under  the  protection  of  the  building.  And  even  though 
it  had  not  been  so  delivered,  but  had  been  merely 
placed  on  the  counter  for  inspection,  it  then  might  be 
more  properly  said  to  be  under  the  personal  protec- 
tion of  the  owner,  than  that  of  the  building.1  So  the 
snatching  of  property  hung  out  upon  the  front  of  a 
store  for  the  purpose  of  attracting  customers,  is  not 
larceny  from  a  building.  The  goods  are  not  under 
the  protection  of  the  building.2  The  distinctions  are 
very  fine.  Thus,  if  a  person,  on  retiring  to  bed,  places 
his  watch  upon  a  table  by  his  bedside,  even  within  his 
reach,  the  taking  it  while  he  is  asleep  is  larceny  from 
the  building.3  The  taking  it  while  he  is  awake  would 
probably  amount  to  simple  larceny  only,4  the  property 
not  being  so  related  to  the  person  as  to  be  under  his 
protection ;  while  if  taken  from  under  the  pillow  of  the 
owner  while  he  is  asleep,  especially  if  the  taking  in- 

1  Com.  v.  Lester,  Sup.  Ct.  Mass.,  June,  18S0. 
a  Martinez  v.  State,  41  Texas,  126. 
8  Reg.  v.  Hamilton,  8  C.  &  P.  49. 
*  Com.  v.  Smith,  111  Mass    12  I. 
12 


1/0  CRIMINAL  LAW. 

volved  a  disturbance  of  the  person,  it  might  be  larceny 
from  the  person.  The  question  in  all  cases  is  whether 
the  property  is  so  situated  that  it  may  be  taken  without 
a  violation  of  the  protection  supposed,  by  the  law,  to  be 
afforded  by  being  kept  in  a  building,  or  being  within 
the  personal  custody  of  the  owner.  If  so,  then  simple 
larceny  only  is  committed.  If,  on  the  other  hand,  the 
protection  afforded  by  the  building  or  by  personal  cus- 
tody be  violated,  then  the  larceny  is  from  the  building 
or  from  the  person,  as  the  case  may  be.1  The  per- 
sonal custody  need  not  be  actual,  but  may  be  con- 
structive, as  the  cases  just  cited  show.  And  perhaps 
a  case  might  be  supposed  where  the  protection  of  the 
building  would  be  constructive  also.2  The  old  notion 
that  in  order  to  constitute  larceny  from  the  person  the 
larceny  must  be  by  stealth,  privily  or  clandestinely, 
and  without  the  knowledge  of  the  owner,  which  was 
embodied  in  some  early  statutes,  is  probably  not  now 
recognized  by  the  law  of  any  State.3 

§  167.  Place.  —  That  larceny  in  one  jurisdiction,  of 
goods  thence  transported  to  another  jurisdiction,  may 
be  larceny  in  the  latter,  has  already  been  shown.4 

§  168.  The  larceny  at  the  same  time  of  property  of 
different  owners,  though  sometimes  held  to  be  separate 
larcenies  of  the  property  of  the  different  owners,  is  but 
a  single  act ;  and,  both  upon  the  reason  of  the  thing 
and  the  tendency  of  the  modern  authorities,  consti- 

i  Reg.  v.  Selway,  8  Cox  C.  C.  235. 

2  See  also  United  States  v.  Jones,  3  Wash.  C.  Ct.  209 ;  and  post, 
Robbery. 

8  Com.  v.  Dimond,  3  Cush.  (Mass.)  235;  2  Bishop  Cr.  Law,  §  895 
et  seq. 

*  Ante,  §  41. 


LARCENY.    LASCIVIOUSNESS.  179 

tutes  but  a  single  offence.  The  act,  as  an  offence,  is 
against  the  public,  and  not  against  the  several  owners, 
with  reference  to  whom  it  is  but  a  trespass.  The  alle- 
gation of  ownership  is  for  the  purpose  of  identification 
of  the  property,  and  is  but  matter  of  pleading.1 


LASCIVIOUSNESS. 


jb 


1* 

§  160.  Lasciviousness  is  punishable  at  common  law, 
and  embraces  indecency  and  obscenity,  both  of  word 
and  act ;  as  the  indecent  exposure  of  one's  person  in  a 
I  ml  die  place,2  or  the  use  of  obscene  language  in  pub- 
lic.3 It  is  immaterial  how  many  or  how  few  may  see 
or  hear,  if  the  act  be  done  in  public  wiiere  many  may 
see  or  hear.4  And  the  permission  of  those,  for  whose 
decent  appearance  one  is  responsible,  to  go  about  pub- 
licly in  a  state  of  nudity  has  been  held  to  be  lewdness 
on  the  part  of  the  person  so  permitting.5  Under 
statutes  against  lascivious  behavior  and  lascivious  car- 
riage, —  substantially  the  same,  —  it  seems  to  be  the 
law  that  the  offence  may  be  committed  by  exposure  of 
the  person  and  solicitation  to  sexual  intercourse,  with- 
out the  consent  of  the  party  so  solicited,  although  it 
be  not  done  in  a  public  place.6     This,  however,  would 

i  Nichols  o.  Com.,  Sup.  Ct.  Ky.,  November,  1879,  9  Reptr.  114; 
State  v.  Hennessy,  23  Ohio  St.  339 ;  State  v.  Morrill,  44  N.  H.  624 ; 
Bell  v.  State,  42  Ind.  335 ;  State  v.  Mqrphin,  37  Mo.  373  ;  Wilson  r. 
State,  45  Texas,  77  ;  Lowe  v.  State,  57  Ga.  171. 

2  State  v.  Rose,  32  Mo.  560. 

8  State  v.  Appling,  25  Mo.  315. 

*  State  v.  Millard,  18  Vt.  574  ;  post,  §  132. 

»  Brittain  v.  State,  11  Humph.  (Tenn.)  203. 

6  Staie  v.  Millard,  ubi  siqtru ;  Fowler  v.  State,  5  Day  (Conn.),  81 
See  also  Dillard  v.  State,  41  Ga.  278. 


180  CRIMINAL  LAW. 

not  amount  to  open  and  gross  lewdness.1  Lascivious 
cohabitation  implies  something  more  than  a  single  act 
of  sexual  intercourse.2 


* 


LIBEL    AND    SLANDER. 


u^ 


§  170.  A  general  and  comprehensive  definition  of 
libel  is  that  of  Hamilton,  in  the  argument  in  the  case 
of  The  People  v.  Crosswell,3  which  has  been  repeat- 
edly approved  by  the  courts  of  New  York,  and  is  as 
follows  :  "  A  censorious  or  ridiculing  writing,  picture, 
or  sign,  made  with  a  mischievous  or  malicious  intent, 
toward  government,  magistrates,  or  individuals." 4 

Within  the  scope  of  this  definition,  printed  and  pub- 
lished blasphemy  is  also  indictable  as  a  libel ; 6  and  so 
is  printed  obscenity  or  other  immoral  matter,  —  both 
on  the  ground  that  they  tend  to  deprave  or  corrupt  the 
public  morals.6  So  is  a  publication  against  the  gov- 
ernment, tending  to  degrade  and  vilify  it,  and  to  pro- 
mote discontent  and  insurrection  ; 7  or  calumniating  a 
court  of  justice,  tending  to  weaken  the  administration 
of  justice.8  So  libels  upon  distinguished  official  for- 
eign personages  have  repeatedly  been  held  in  England 
punishable  at  the  common  law,  as  tending  to  disturb 

1  Com.  v.  Catlin,  1  Mass.  8. 

2  State  v.  Marvin,  12  Iowa,  499 ;  Com.  v.  Calef,  10  Mass.  153. 

3  3  Johns.  Cas.  354. 

4  Cooper  v.  Greeley,  1  Denio  (N.  T.),  347. 

6  Com.  v.  Kneeland,  20  Pick.  (Mass.)  211 ;  People  v.  Ruggles,  8 
Johns.  (N.  Y.)  290;  ante,  Blasphemy. 

6  Com.  v.  Holmes,  17  Mass.  336 ;  Com.  v.  Sharpless,  2  S.  &  R. 
(Pa.)  91. 

J  Respublica  v.  Dennis,  4  Yeates  (Pa.),  270. 

8  Rex  v.  Watson,  2  T.  R.  199. 


LIBEL  AND   SLANDER.  181 

friendly  international  relations.1  It  remains  to  be  seen 
whether  the  State  courts  (the  United  States  courts 
having  no  jurisdiction)  will  in  this  country  follow  such 
a  precedent. 

But  the  more  common  and  restricted  definition  of 
libel  at  common  law,  as  against  individuals,  is  :! The  ma- 
licious publication  of_any  writing,  sign^picture1_effigy, 
or  other  representation  tending  to  defame  the  memory 
of  one  who  is  dead,  or  the  rep^ation_oLone  who  is 
living,  ami  to  expose  hhxutourjdicule,  hatred,  or  con- 
tempt) It  is  punishable  as  a  misdemeanor,  on  the 
ground  that  such  a  publication  lias  a  tendency  to  dis- 
turb the  public  peace.2 

Words  that  would  not  be  actionable  as  slanderous, 
may,  nevertheless,  if  written  and  published,  be  indict- 
able as  libellous.  Written  slander  is  necessarily  pre- 
meditated, and  shows  design.  It  is  more  permanent 
in  its  effect  and  calculated  to  do  much  greater  injury, 
and  "  contains  more  malice."  3  Thus,  it  is  libellous 
to  write  and  publish  of  a  juror  that  he  has  misbe- 
haved, as  such,  by  staking  the  verdict  upon  a  chance  ;4 
pr  of  a  stage-driver,  that  he  has  been  guilty  of  gross 
misconduct  and  insult  towards  his  passengers  ; 5  or 
that   a   bishop   has   attempted   to   convert   others   to 


i  Rex  v.  D'Eon,  1  W.  Bl.  510 ;  Peltier's  Case,  28  Howell  St.  Tr. 
29. 

2  1  Hawk.  P.  C.  c.  73,  §§  23,  24  ;  People  v.  Crosswell,  3  Johns.  Cas. 
(N.  Y.)  354 ;  Com.  v.  Clap,  4  Mass.  168 ;  Giles  v.  State,  6  Ga.  276 ; 
State  v.  Henderson,  1  Rich.  (S.  C.)  179;  Cooper  v.  Greeley,  1  Denio, 
347  ;  State  v.  Avery,  7  Conn.  266. 

8  King  v.  Lake,  Hardr.  470. 

«  Coin.  v.  Wright,  1  Cusli.  (Mass.)  46. 

6  Clement  v.  Chivis,  9  B.  &  C.  172. 


182  CRIMINAL  LAW. 

his  religious  views  by  bribes ; J  or  that  a  man  is  a 
"  rascal ; "  2  or  that  "  he  is  thought  no  more  of  than 
a  horse-thief;"3  or  to  charge  a  lawyer  with  divulging 
the  secrets  of  his  client ; 4  or  to  say  of  a  member  of 
a  convention  to  frame  a  constitution,  that  he  con- 
tended in  the  convention  that  government  had  no 
more  right  to  provide  for  worship  of  the  Supreme 
Being  than  of  the  devil ; 6  or  to  print  of  a  man  that  he 
did  not  dare  to  bring  an  action  in  a  certain  county 
"  because  he  was  known  there." 6  And  it  has  even 
been  held  that  it  is  libellous  to  charge  a  man  with  a 
gross  want  of  feeling  or  discretion.7  So  if  a  portrait- 
painter  paints  the  ears  of  an  ass  to  a  likeness  he  has 
taken,  and  exposes  it  to  the  public,  this  is  a  libel.8  So 
is  it  to  say  of  a  historian  that  he  disregards  justice 
and  propriety,  and  is  insensible  to  his  obligations  as  a 
historian.9  So  it  is  libellous  to  publish  a  correct  account 
of  judicial  proceedings,  if  accompanied  with  com- 
ments and  insinuations  tending  to  asperse  a  man's 
character  ; 10  or  for  an  attorney  to  introduce  such  mat- 
ter into  his  pleadings.11  So  to  say  of  a  candidate  for 
office  that  he  would  betray  his  trust  from  motives  of 

1  Tabart  v.  Tupper,  5  Bing.  17. 

2  Williams  v.  Carries,  4  Humph.  (Tenn.)  9. 
8  Nelson  v.  Musgrave,  10  Mo.  648. 

4  Riggs  e.  Denniston,  3  Johns.  (N.  Y.)  Cas.  198. 
6  Stow  v.  Converse,  3  Conn.  325. 

6  Steel  v.  Southwick,  9  Johns.  (N.  Y.)  214. 

7  Weaver  v.  Lloyd,  2  B.  &  C.  678.     See  also  DeBouillon  v.  People, 
2  Hill  (N.  Y.),248. 

8  Mezzara's  Case,  2  City  Hall  Kec.  113. 

9  Cooper  v.  Stone,  24  Wend.  (N.  Y.)  434. 

w  Thomas  v.  Cross  well,  7  Johns.  (N.  Y.)  264 
'l  Com.  v.  Culver,  2  Pa.  Law  Jour.  362. 


LIBEL   AND   SLANDER.  1>:' 

political  aggrandizement,  or  to  accomplish  some  sin- 
ister or  dishonest  purpose,  or  to  gratify  his  private 
malice,  is  a  libel;  but  not,  to  publish  the  truth 
concc ruing  his  character  and  qualifications  for  the 
office  he  aspires  to,  with  a  view  to  inform  the 
electors.1 

The  form  of  expression  in  charging  is  immaterial, 
whether  interrogative  or  direct,  or  by  innuendo,  or 
ironical,  or  allegorical,  or  by  caricature,  or  by  any 
other  device  whatever.  The  question  always  is,  what 
is  the  meaning  and  intent  of  the  author,  and  how- 
will  it  be  understood  by  people  generally.2 

§  171.  Malicious.  —  To  constitute  a  malicious  pub- 
lication it  is  not  necessary  that  the  party  publishing 
be  actuated  by  a  feeling  of  personal  hatred  or  ill-will 
towards  the  person  defamed,  or  even  that  it  be  done  in 
the  pursuit  of  any  general  evil  purpose  or  design,  as  in 
the  case  of  malicious  mischief.3  It  is  sufficient  if  the 
act  be  done  wilfully,  unlawfully,  and  in  violation  of  the 
just-jights  of  another,  according;  to  what,  as  we  have. 
seen,!!!  the  general  definition  of  legal  malice.  And 
malice  is  presumed  as  matter  of  law  by  the  proof  of 
publication.5     Under  modern  statutes,  and,  in  some 

i  Powers  v.  Dubois,  17  Wend.  (N.  Y.)  G3 ;  Com.  v.  Clap,  4  Mass. 
163;  State  v.  Burnham,  9  N.  H.  34;  Com  v.  Odell,  3  Pitts.  (Pa.)  449; 
Wilson  -.  Noonan,  28  Wis.  105. 

a  1  Hawk.  P.  C.  c.  73,  §§  23,  24 ;  Rex  v.  Lambert,  2  Camp.  403  ; 
State  v.  Chase,  Walk.  (Miss.)  384  ;  Gathercole's  Case,  2  Lewin,  255. 

8  See  post,  Malicious  Mischief. 

*  Ante,  §  9. 

»  Com.  v.  Snelling,  15  Pick.  (Mass.)  337  ;  Smith  v.  State,  32  Texas, 
594;  Layton  v.  Harris,  3  Harr.  (Del.)  406;  Root  v.  King,  7  Cow. 
(N.  Y.)  618;  Com.  v.  Sanderson,  3  Pa.  Law  Jour.  269;  Rex  » 
Harvey,  2  B.  &  C.  257. 


184  CRIMINAL  LAW. 

cases,  constitutional  provisions,  however,  the  whole 
question  of  law  and  fact,  i.e.  whether  the  matter 
published  was  illegal  and  libellous,  and  whether  it 
was  malicious  or  not,  as  well  as  whether  it  was 
written  or  published  by  the  defendant,  is  left  to  the 
jury,  they  having  in  such  cases  greater  rights  than 
in  other  criminal  prosecutions.1 

It  is  not  essential  that  the  charge  should  be  false  or 
scandalous  :  it  is  enough  if  it  be  malicious.  Indeed, 
the  old  maxim  of  the  common  law  was,  "  the  greater  the 
truth  the  greater  the  libel,"  on  the  ground  that  thereby 
the  danger  of  disturbance  of  the  public  peace  was 
greater.  The  truth,  therefore,  is  no  justification  by  the 
common  law.  But  this  rule  has  in  some  cases,  in  this 
country,  been  so  far  modified  as  to  permit  the  defend- 
ant to  show,  if  he  can,  that  the  publication,  under  the 
circumstances,  was  justifiable  and  from  good  motives, 
and  then  show  its  truth,  in  order  to  negative  the 
malice  and  intent  to  defame.2  And  statutes  in  most 
if  not  all  of  the  States  now  admit  the  truth  in  defence 
if  the  matter  be  published  for  a  justifiable  end  and 
with  good  motives,  and  give  the  jury  the  right  to  de- 
termine these  facts,  as  well  as  whether  the  publication 
be  a  libel  or  not. 

§  172.  Publication. — The  placing  a  libel  where  it 
may  be  seen  and  understood  by  one  or  more  persons 
other  than  the  maker  is  a  publication,  without  refer- 

i  State  v.  Gould,  62  Me.  509  ;  2  Greenl.  Et.  §  411 ;  State  v.  Lehre, 
2  Brev.  (S.  C.)  446. 

2  Com.  v.  Clap,  4  Mass.  163;  Cora.  v.  Blanding,  3  Pick.  (Mass.) 
304  ;  Barthelemy  v.  People,  2  Hill  (N.  Y.),  248.  See  also  State  v. 
Lehre,  2  Brev.  (S.  C)  446;  Cora.  v.  Morris,  1  Va.  Cas.  176;  Codd's 
Case.  2  City  Hall  Rec.  171. 


LIBEL  AND    SLANDER.  185 

ence  to  the  question  whether  in  fact  it  is  seen  or  not.1 
It  has  been  held  that  to  send  a  libellous  letter  to  the 
person  libelled  is  a  sufficient  publication.2  But  it  may 
be  doubted,  in  the  absence  of  statutory  provision  to 
that  effect,  if  the  mere  delivery  of  a  letter  containing 
libellous  matter  to  the  libelled  party  is  a  technical  pub- 
lication, though  doubtless  the  sending  of  such  a  letter 
is  an  indictable  offence,  as  tending  to  a  breach  of  the 
peace.3  But  there  can  be  no  doubt  that  a  sealed  letter 
addressed  and  delivered  to  the  wife,  containing  asper- 
sions upon  her  husband's  character,  is  a  publication.4 

§173.  Privileged  Communications.  —  Certain  publi- 
cations are  privileged,  that  is  to  say,  are  prima  facie 
permissible  and  lawful.  If  the  occasion  and  circum- 
stances under  which  they  are  made  rebut  the  inference 
of  malice  drawifTrom  FEiTTibellous  character,  the^publj- 
cations  arejprivileged  and  lawful,  unless  the  complain- 
ant shows  that  the  defendant  was  actuated  by  improper 
motives.  But  no  one  can  intentionally  injure  under 
cover  of  a  privileged  communication  ;  and  if  he  avail 
himself  of  this  course  he  is  chargeable,  although  the 
matter  published  be  true  and  privileged.5  Thus  a  fair 
and    candid    criticism,   though   severe,    of    a   literary 

i  Giles  v.  State,  6  Ga.  276  ;  Rex  v.  Burdett,  4  B.  &  A.  126  ;  Whit- 
field v.  S.  E.  Ey.  Co.,  E.,  B.  &  E.  115 ;  ante,  §  169 ;  post,  §  182. 

-  State  v.  Avery,  7  Conn.  266. 

8  Hodges  v.  State,  5  Humph.  (Tenn.)  112;  Mcintosh  v.  Matherly, 
9  B.  Mini  (Ky.)  119 ;  Fouville  v.  M'Nease,  Dudley  (S.  C),  303;  Lyle 
v.  Cleason,  1  Caines  (N.  Y.),  581;  Shefiil  v.  Van  Deusen,  18  Gray 
(Mass.),  804. 

4  Schenck  v.  Schenck,  1  Spencer  (N.  J.),  208;  Wenman  v.  Ash, 
13  C.  B.  386. 

5  Wright  o.  Woodgate,  2  C,  M.  &  R.  573;  Com.  v.  Blanding, 
8  Pick.  304. 


186  CRIMINAL  LAW. 

work,  exposing  its  demerits,  is  privileged  ;  but  if  the 
criticism  is  made  the  vehicle  of  personal  calumny 
against  the  author  aside  from  the  legitimate  purpose 
of  criticism,  it  becomes  libellous.1  A  communication 
made  in  good  faith  by  a  person  in  the  discharge  of 
some  private  duty,  legal  or  moral,  or  in  the  conduct 
of  his  own  affairs,  and  in  matters  wherein  he  is  in- 
terested, is  privileged.2  Therefore,  one  may  write  to 
a  relation  warning  her  not  to  marry  a  certain  person, 
for  special  reasons  affecting  the  character  of  that  per- 
son;3 or  complain  to  a  superior,  against  an  inferior, 
officer  in  order  to  obtain  redress  ; 4  or  give  the  char- 
acter of  a  servant  in  answer  to  a  proper  inquiry  ; 5  or 
report  a  servant's  conduct  to  his  master  ; 6  or  tell  the 
truth  to  defend  his  own  character  and  interests  ; 7  or 
to  enforce  the  rules  of  a  society  ; 8  or  to  aid  in  the 
exposure  or  detection  of  crime,  or  protect  the  public 
or  a  friend  from  being  swindled  or  otherwise  injured.9 
These  communications  and  the  like,  though  they  may 
be  to  some  extent  false,  are  all  privileged  if  made  with- 
out malice,  and  for  justifiable  ends.  Though  a  man  is 
protected  in  making  a  libellous  speech  in  a  legislative 

1  Carr  v.  Hood,  1  Camp.  355. 

2  Bod  well  v.  Osgood,  3  Pick.  (Mass.)  379;  Toogood  t;.  Spyring, 
4  Tyrw.  582. 

8  Todd  v.  Hawkins,  8  C.  &  B.  08. 

*  Fairman  v.  Ives,  5  B.  &  A.  642. 

6  Child  v.  Affleck,  9  B.  &  C.  403. 

6  Cockayne  v.  Hodgkinson,  5  C.  &  B.  543. 

1  Coward  v.  Wellington,  7  C.  &  P.  531. 

8  Remington  v.  Congdon,  2  Pick.  (Mass.)  310;  Streety  v.  Wood,  15 
Barb.  (N.  Y.)  105. 

9  Com.  v.  Blanding,  3  Pick.  (Mass.)  324;  Lay  v.  Lawson,  4  A.  &  E. 
795. 


LIBEL  AND   SLANDER.     MAINTENANCE.  187 

assembly,  if  he  publish  it,  lie  is  guilty  of  libel.1  And 
fair  reports  of  judicial  and  other  proceedings,  as  mat- 
ter of  news,  will  be  privileged,  while  if  unfair,  or  inter- 
larded with  malicious  comment,  they  will  be  punishable 
as  libellous.2  If,  however,  the  matter  published  is  in 
itself  indecent,  blasphemous,  or  contrary  to  good  mor- 
als, it  has  been  held  upon  very  careful  consideration  to 
be  indictable.15 

§  174.  Slander.  —  No  instance  has  been  found  of  an 
indictment  for  mere  verbal  slander  against  an  individ- 
ual in  this  country,  nor  is  it  indictable  in  England,  un- 
less the  individual  sustained  such  a  relation  to  the 
public,  or  the  slander  was  of  such  a  character,  as  to 
involve  something  more  than  a  private  injury,  as  where 
one  was  held  indictable  for  calling  a  grand  jury  as  a 
body  a  set  of  perjured  rogues.4 


MAINTENANCE. 


v\u 


§  175.  Maintenance,  as  we  have  seen,6  is  the  officious 
intermeddling  by  a  person,  without  interest,  in  the  pro- 
motion oF  the  prosecution  or  defence  of  a  suit.  In  ad- 
dition to  wTiat  waTtTien  said,  it  may  be  worth  while  to 
add  here  a  few  observations  and  illustrations. 

§  170.    Officious. — The  intermeddling  is  not  officious 

i  Rex  v.  Creavey,  1  M.  &  S.  273. 

2  Clark  v.  Binney,  2  Pick.  (Mass.)  113;  Thomas  v.  Croswell,  7 
Johns.  272 ;  Lewis  v.  Walter,  4  B.  &  A.  605 ;  Curry  v.  Walter,  1  B.  & 
P.  523. 

8  Rex  v.  Carlile,  3  B.  &  A.  167. 

*  Rex  v.  Spiller,  2  Show.  207.  See  also  2  Bishop  Cr.  Law,  §  945 
ei  seq. 

6  Ante,  §  66. 


188  CRIMINAL  LAW. 

or  unjustifiable,  if  prompted  by  personal  sympathy 
growing  out  of  relationship,  or  long  association,  as 
between  master  and  servant,1  or  by  motives  of  charity.2 
And  if  the  party  intermeddling  has  a  special  interest 
in  the  general  question  to  be  decided,  though  not 
otherwise  in  the  result  of  the  particular  suit,  his  inter- 
vention is  not  unlawful.3  If  the  party  have  an  interest, 
legal  or  equitable,  though  it  be  but  a  contingent  interest, 
he  may  assist  another  in  a  lawsuit.  Any  substantial 
privity  or  concern  in  the  suit  will  justify  him.4  The 
common  law  of  champerty  and  maintenance  is  still 
recognized  in  some  of  the  States,  though  a  much  less 
degree  of  interest  will  now  justify  the  intervention 
than  formerly.5  In  most  of  the  States,  however,  the 
offences  have  become  a  matter  of  statutory  regulation, 
and  in  some  of  them  the  common  law  is  not  regarded 
as  in  force.6  The  practices  out  of  which  originated  the 
common  and  early  English  statute  laws  against  the  of- 
fences of  champerty  and  maintenance  —  among  which 
a  common  one  was  for  a  party  litigant  to  interest 
some  "  great  person  "  to  come  in  and  aid  him  to  over- 
whelm his  antagonist  by  giving  him  a  share  of  the  pro- 
ceeds —  are  not  now  so  common  as  to  require  the 
interposition  of  the  aid  of  the  criminal  law.     And  it 

1  Campbell  v.  Jones,  4  Wend.  (N.  Y.)  306;  Thallhimer  v.  Brink- 
erhoof,  3  Cow.  (N.  Y.)  623. 

2  Perine  v.  Dunn,  3  Johns.  Ch.  (N.  Y.)  508. 
8  Gower  v.  Nowell,  1  Greenl.  (Me.)  292. 

*  Wickham  v.  Conklin,  8  Johns.  (N.  Y.)  220. 

5  Lathrop  v.  Amherst  Bank,  9  Met.  (Mass.)  489;  Wood  v.  McGuire, 
21  Ga.  576. 

8  Richardson  v.  Rowland,  40  Conn.  565.  See  also  note  to  same 
case,  14  Am.  Law  Reg.  n.  s.  78. 


MAINTENANCE.  189 

.8,  to  say  the  least,  very  doubtful  whether,  at  the 
present  day,  an  indictment  for  either  offence,  pure 
and  simple,  and  unattended  by  circumstances  of  ag- 
gravation which  would  amount  to  a  hindrance  or 
perversion  of  justice,  would  be  sustained  in  any  of 
our  courts.1 

Questions  concerning  them  have%  usually  arisen  in 
civil  actions,  in  which  a  champertous  contract  has 
been  set  up  as  a  defence.  And  here  the  courts  are 
inclined,  without  much  regard  to  the  old  common- 
law  precedents,  to  hold  such,  and  only  such,  contracts 
as  are  clearly  against  a  sound  public  policy  as  chain 
pertous.2 

Thus,  where  an  attorney  agrees  to  carry  on  a  suit  at 
his  own  expense  for  a  share  of  the  proceeds,  this  seems 
generally  held  to  be  champertous.3  But  even  in  such 
case,  if  the  suit  is  against  the  government,  and  there 
is  no  danger  that  a  "  great  person  "  may  bear  down 
and  oppress  a  weak  defendant,  the  reason  of  the  law 
failing,  the  rule  itself  fails ;  and  accordingly  it  has 
been  recently  held  that  an  agreement  by  an  attorney 
to  carry  on  a  suit  against  the  United  States  in  the 
Court  of  Claims,  at  his  own  expense,  for  a  portion  of 
the  proceeds,  is  not  champertous.4  Nor  is  an  agree- 
ment to  pay  an  attorney  a  fixed  sum  for  his  services, 
"  out  of  the  proceeds  of  sales  of  the  property  [real 
estate],  as  such  proceeds  shall  be  realized."5 

1  Ibid.;  Maybin  v.  Raymond,  15  N.  B.  R.  (U.  S.  C.  Ct.,  South 
Dist.  Miss.)  354;  2  Bishop  Cr.  Law,  §§  129,  130. 
-  Key  v.  Vattier,  1  Ohio,  132. 

8  Martin  v.  Clark,  8  R.  I.  389 ;  Stearns  v.  Felkner,  28  Wis.  594 
4  Maybin  v.  Raymond,  ubi  supra. 
6  McPherson  v.  Cox,  96  U.  S.  404. 


190  CRIMINAL  LAW. 

MALICIOUS    MISCHIEF. 

§  177.  Malicious  mischief,  at  common  law,  was  con- 
fined to  injuries  to  personal  property.  Injuries  to  the 
realty  were  held  to  be  matters  only  of  trespass.  And 
such,  perhaps,  were  all  injuries  to  personal  property, 
short  of  their  destruction.1  But  such  injuries,  both 
to  personal  and  real  property,  came  to  be  of  such  fre- 
quency and  seriousness,  that  they  were  made  mat- 
ters of  special  statute  regulation,  for  the  purpose  of 
providing  a  more  adequate  remedy  and  a  severer  pun- 
ishment than  was  permitted  by  the  common  law.  And 
from  the  time  of  Henry  VIII.  down  to  the  present 
time,  both  in  England  and  this  country,  a  great  number 
of  statutes  have  been  passed  touching  the  subject,  cov- 
ering such  forms  of  mischief  as  then  existed  and  from 
time  to  time  grew  out  of  the  changing  circumstances 
of  society,  till  now  almost  every  form  of  such  mischief 
is  made  the  subject  of  statute  regulation,  and  but  few 
cases  arise  which  are  cognizable  only  by  the  common 
law.  Nevertheless,  the  common  law  is  looked  to,  so  far 
as  it  is  applicable,  in  aid  of  the  interpretation  of  the 
statutes.  In  many  cases  the  dividing  line  between  ma- 
licious mischief  and  larceny  is  very  shadowy,  as  where 
there  is  a  total  destruction  of  the  property  without  any 
apparent  advantage  to  the  destroyer.2  Indeed,  it  has 
been  held  that  the  same  facts  might  support  an  indict- 
ment for  either  offence.3 

1  State  v.  Manuel,  72  N.  C.  201.  But  see  People  v.  Smith,  5  Cow. 
(N.  Y.)  258;  Loomis  v.  Edgerton,  13  Wend.  (N.  Y.)  419. 

2  Ante,  §  159. 

3  State  v.  Leavitt,  32  Me.  183  ;  State  v.  Helms,  5  Ired.  (N.  C.)  364; 
Snap  v.  People,  19  ill.  80;  People  v.  Moody,  5  Parker  C.  C.  568; 
Parris  v.  People,  76  111.  274. 


MALICIOUS   MISCHIEF.  191 

§  178.  Malice,  in  all  that  class  of  crimes  included 
under  the  general  category  of  "  malicious  mischief," 
is  not  adequately  interpreted  by  the  ordinary  legal  defi- 
nition of  malice  ;  to  wit,  the  voluntary  doing  of  an  un- 
law fin^a^t^jthoja^lavvful^xcuse^  But  it  is  a  more 
specific  and  less  general  purpose  of  evil.  It  is  de- 
fined by  Blackstone  as  a  "  spirit  of  wanton  cruelty. ^r 
black  and  diabolical  revenge."-  And.  in  a  case  where 
the  prosecution  was  for  wilfully  and  maliciously  shoot- 
ing a  certain  animal,  the  court  held  that  to  constitute 
the  offence  the  act  must  be  not  only  voluntarily  un- 
lawful and  without  legal  excuse,  but  it  must  be  done 
in  a  spirit  of  wanton  cruelty  or  wicked  revenge.3 

And  such  has  been  held  to  be  the  true  interpretation 
of  a  statute  which  punishes  mischief  done  "  wilfully  or 
maliciously,"4  and  even  where  it  punishes  mischief 
"wilfully"  done, —  the  history  of  the  legislation,  of 
which  the  statute  formed  a  part,  showing  that  such 
was  the  intent  of  the  legislature.5  Doing  or  omitting 
to  do  a  thing,  knowingly  and  wilfully,  implies  not  only 
a  knowledge  of  the  thing,  but  a  determination,  with  a 
bad  intent  or  purpose,  to  do  it,  or  omit  doing  it.0 

There  is,  undoubtedly,  in  most  cases,  an  element 
of  personal  hostility  and  spite,  of  actual  ill-will  and 
resentment  towards  some  individual  or  particular  com- 

1  Ante,  Malice,  §9. 

»  4  Bl.  Com.  244. 

3  Com.  v.  Waklen,  3  Cusli.  (Mass.)  539.  See  also  Goforth  v.  State, 
8  Humph.  (Term.)  37;  Branch  v.  State,  41  Texas,  622 ;  Duncan  v. 
State,  49  Miss.  831. 

*  Com.  v.  Williams,  110  Mass.  401. 

B  State  v.  Clarke,  5  Dutch.  (N.  J.)  96. 

«  Felton  v.  United  States,  96  U.  S.  699  ;  Com.  v.  Kneeland,  20  Pick 
(Mass.)  206. 


192  CRD1INAL  LAW. 

munity,  and  in  some  cases  this  is  held  to  he  essen- 
tial ; !  but,  unless  restricted  to  these  by  statute,  there 
seems  to  be  no  reason  to  doubt  that  wanton  cruelty  or 
injury  to  or  destruction  of  property,  committed  under 
such  circumstances  as  to  indicate  a  malignant  spirit  of 
mischief,  indiscriminate  in  its  purpose,  as  where  one 
goes  up  and  down  the  street  throwing  a  destructive 
acid  upon  the  clothes  of  such  as  may  be  passing  to 
and  fro,  for  no  other  purpose  than  to  do  the  mischief, 
would  be  held  to  constitute  the  offence.2  Yet  it  has 
been  held  that  proof  of  malice  towards  a  son  is  not  ad- 
missible on  an  indictment  for  malicious  injury  to  the 
property  of  the  father,3  while,  on  the  other  hand,  it 
has  been  held  that  proof  of  malice  towards  a  bailee 
is  admissible  on  an  indictment  for  injury  of  property 
described  in  the  indictment  as  belonging  to  the  bailor.4 
Mere  malice  towards  the  property  injured,  however,  as 
where  one  injures  a  horse  out  of  passion  or  dislike  of 
the  horse,  is  not  sufficient  to  constitute  the  offence.6 

In  order  to  bring  the  act  within  the  purview  of  the 
law  against  malicious  mischief,  it  must  appear  that  the 
mischief  is  done  intentionally,  and  —  perhaps  it  is 
not  too  much  to  say  —  for  the  purpose  of  doing  it,  and 
not  as  incidental  to  the  perpetration  of  some  other  act, 
or  the  accomplishment  of  some  other  purpose,  however 

i  State  v.  Robinson,  3  Dev.  &  Batt.  (N.  C)  130;  Holson  v.  State, 
44  Ala.  380 ;  State  v.  Newby,  64  N.  C.  23 ;  State  v.  Pierce,  7  Ala.  728. 

2  State  v.  Landreth,  Car.  L.  R.  331 ;  Moseley  v.  State,  28  Ga.  190; 
Duncan  v.  State,  49  Miss.  331. 

3  Northcot  v.  State,  42  Ala.  330. 

*  Stone  v.  State,  3  Heisk.  (Tenn.)  457. 

6  2  East  P.  C.  1072;  State  v.  Wilson,  3  Yerger  (Tenn.),  278; 
Shepard's  Case,  2  Leach  Cr.  L.  609. 


MALICIOUS  MISCniEF.     MAYHEM.  193 

unlawful.  Thus,  where  one  breaks  a  door  or  window 
to  gratify  his  passion  for  theft,  or  his  lust,  or  while  he 
is  engaged  in  an  assault,  or  if  the  injury  be  done  in  the 
pursuit  of  pleasure,  as  in  hunting  or  fishing,  or  for  the 
protection  of  his  crops,  or  in  any  other  enterprise,  law- 
ful or  unlawful,  where  the  injury  is  not  the  end  sought, 
but  is  merely  incidental  thereto,  the  act  does  not  consti- 
tute the  offence  of  malicious  mischief.1  And  where  the 
injury  is  done  under  a  supposed  right,  claimed  in  good 
faith,  there  is  no  malice  in  the  sense  of  the  law.2 

§  179.  Malice  inferrible  from  Circumstances.  —  Direct 
proof  of  express  malice  by  actual  threats  is  not  neces- 
sary, but  it  may  be  inferred  from  the  attendant  facts 
and  circumstances.3 


MANSLAUGHTER. 

See  Homicide. 

MAYnEM. 


\o 


H\\ 


§  180.    Mayhem  is  defined  by  Blackstone  4  as  "  the^ 
Violently  depriving  another  of  the  use  of  such  of  bis 
members  as  may  render  him  the  less  able,  in  fighting, J 
either  to  defend  himself  or  to  annoy  his  adversary 
Amongst  these  members  were  included  a  finger,  an 

1  Reg.  v.  Pembliton,  12  Cox  C.  C.  607 ;  s.  c.  2  Green  C.  L.  R.  19  ; 
State  B.Clark,  5  Dutch.  (N.  J.)  90;  Wright  v.  State,  30  Ga.  325; 
State  v.  Beech,  20  Ind.  110 ;  Duncan  v.  State,  49  Miss.  831. 

-  State  v.  Flynn,  28  Iowa,  26 ;  Sattler  v.  People,  59  111.  68 ;  State 
v.  Newkirk,  40  Mo.  84;  State  v.  Hause,  71  N.  C.  518;  Goforth  v. 
State,  8  Humph.  (Tenn.)  37;  Palmer  v.  State,  45  Ind.  388 ;  Reg.  v. 
Langford,  1  C.  &  M.  602. 

3  State  v.  Pierce,  7  Ala.  728;  State  i\  McDermott,  36  Iowa,  107. 

*  4  Com.  205. 

13 


194  CRIMINAL  LAW. 

eye,  a  foretooth,  and  those  parts  which  are  supposed 
to  give  courage.  But  cutting  off  the  ear  or  the  nose 
are  not  mayhems  at  common  law,  since  the  loss  of 
these  tends  only  to  disfigure,  but  not  to  weaken.1  The 
injury  must  be  permanent  in  order  to  constitute  the 
offence.2  Under  the  statute,  however,  in  Texas,  the 
fact  that  the  injured  member,  having  been  put  back, 
grew  again  in  its  proper  place  was  no  defence.3  The 
offence  is  now  almost  universally,  in  this  country,  de- 
fined by  statute,  and  generally  treated  as  an  aggra- 
yaiexLaj^ault.  In  many  States  the  statutes  cover 
cases  not  embraced  by  the  common  law,  as  the  biting 
off  an  ear  or  the  slitting  the  nose,  if  the  injury  amounts 
to  a  disfigurement.4 

Mayhem,  at  common  law,  was  punishable  in  some 
cases  as  a  felony,  —  an  eye  for  an  eye,  and  a  tooth  for 
a  tooth,  —  and  in  others  as  a  misdemeanor.6  But  if 
the  offence  is  made  a  felony  in  this  country,  the  pun- 
ishment is  defined  by  statute.  It  is  doubtless,  gener- 
ally, a  misdemeanor,  unless  done  with  intent  to 
commit  a  felony.6 

Under  the  statute  in  New  York,  the  injury  must 
have  been  done  by  "  premeditated  design  "  and  "  of 
purpose."  Hence,  if  done  as  the  result  of  an  unex- 
pected encounter,  or  of  excitement  produced  by  the 
fear  of  bodily  harm,  the  offence  is  not  committed.7     So 

1  Ibid.     See  also  2  Bishop  Cr.  Law,  §  1001,  and  notes. 

2  State  v.  Briley,  8  Porter  (Ala.),  472. 

3  Slatterly  v.  State,  41  Texas,  619. 

4  State  v.  Gerkin,  1  Ired.  (N.  C.)  121;  State  v.  Ailey,  3  Heisk. 
(Tenn.)  8. 

e  4  Bl.  Com.  205 ;  Com.  v.  Newell,  7  Mass.  245. 

6  Ibid. ;  Stephen's  Dig.  Cr.  Law,  c.  25  and  26. 

7  Godfrey  v.  People,  63  N.  Y.  207. 


MAYHEM.    NUISANCE.  105 

under  the  statute  5  Henry  IV.  c.  5,  malice  prepense 
was  said  by  Lord  Coke  to  mean  "voluntarily  and  of 
set  purpose."  1  But  in  North  Carolina,  where  the  stat- 
ute prescribes  the  act  done  "  on  purpose  and  unlaw- 
fully, but  without  malice  aforethought,"  it  has  been 
held  that  the  intent  to  disfigure  is  prima  facie  to  be 
inferred  from  an  act  which  does  in  fact  disfigure,  and 
it  is  not  necessary  to  prove  a  preconceived  intention 
to  disfigure.2  .     ,       *.    ^' 

§  18l!  A  nuisance  is  anything  that  works  hurt, 
inconvenienee,  or  damage.  If  to  the  public,  as  the 
obstruction  of  a  highway  or  the  pollution  of  the 
atmosphere,  it  is  a  common  nuisance,  and  punishable 
by  indictment  at  common  law.  If  the  hurt  is  only  to 
a  private  person  or  interest,  the  remedy  is  by  civil 
proceedings.3  And  that  is  hurtful  which  substantially 
interferes  with  the  free  exercise  of  a  public  right, 
which  shocks  or  corrupts  the  public  morals,  or  in- 
jures the  public  health.  And  the  hurt  may  be  wrought 
as  well  by  acts  of  omission  as  by  acts  of  commission  ; 
as  by  failing  to  repair  a  road,  or  to  entertain  a  stranger 
at  an  inn,  both  being  regarded  as  disorderly  acts.4 

§  182.  illustrations.  —  Certain  acts  are  said  to  be 
nuisances  per  se,  because  they  are  in  violation  of  the 

1  Coke,  3  Inst.  62.    See  also  Godfrey  v.  People,  ubi  supra. 

2  State  v.  Gerkin,  1  Ired.  (N.  C.)  121.  See  also  State  v.  Simmons, 
8  Ala.  497. 

8  3  Bl.  Com.  216;  4  Bl.  Com.  166;  State  v.  Schlotman,  52  Mo. 
164. 

*  4  Bl.  Com.  167 ;  State  v.  Madison,  63  Me.  646 ;  State  v.  Morris 
Canal  Co.,  2  Zabr.  (N.  J.)  537  ;  Hill  v.  State,  4  Sneed  (Tenn.),  443. 


196  CRIMINAL  LAW. 

public  right.  Thus,  an  obstruction  in  a  street  is  a 
nuisance,  because  it  may  interfere  with  public  travel, 
although  it  does  not  affirmatively  appear  that  it  cer- 
tainly has  interfered  with  it,  or  even  if  it  appears  that 
there  has  been  no  travel  to  obstruct  since  the  obstruc- 
tion was  erected.1  So  of  the  obstruction  of  navigable 
waters,  although  the  inconvenience  may  be  inappreci- 
able.2 So  the  doing  any  act  in  the  street  or  in  a  build- 
ing adjoining  the  street,  as  the  exhibition  of  pictures  in  a 
window  ;3  or  the  holding  an  auction  sale  on  the  street  ;4 
or  erecting  houses  on  a  public  square  ;5  or  the  deliver- 
ing out  of  merchandise  or  other  material,  as  of  brewer's 
grain  from  a  brewery,  in  such  a  manner  as  to  cause 
the  street  to  be  constantly  obstructed  by  men  or  vehi- 
cles,—  will  amount  to  a  nuisance.6  A  mere  transitory 
obstruction,  however,  resulting  from  the  ordinary  and 
proper  use  of  a  highway,  as  in  the  unloading  of  goods 
from  a  wagon,  or  the  dumping  coal  into  a  street  to  be 
removed  to  the  house,  if  the  obstruction  be  not  per- 
mitted to  remain  more  than  a  reasonable  time,  does 
not  amount  to  a  nuisance.7  The  pollution  of  a  stream 
of  water,  by  discharging  into  it  offensive  and  unwhole- 
some matter,  if  the  water  be  used  by  the  public,  is  also 
indictable  as  a  nuisance.8     So  is  the  damming  up  of  a 

i  Knox  v.  New  York  City,  55  Barb.  (N.  Y.  S.  C.)  404;  ante,  §  172. 

'-'  People  v.  Vandertrilt,  28  N.  Y.  396;  Woodman  v.  Kilbourn, 
1  Abb.  (U.  S.)  158 ;  State  v.  Merrit,  35  Conn.  314. 

8  Rex  v.  Carlile,  6  C  &  P.  636. 

4  Com.  v.  Williams,  13  S.  &  R.  (Pa.)  403. 

e  Com.  v.  Rush,  14  Pa.  St.  186. 

6  People  v.  Cunningham,  1  Denio  (N.  Y.),  524;  Rex  v.  Russell, 
6  East,  427. 

"  Rex  v.  Carlile,  6  C.  &  P.  G36 ;  People  v.  Cunningham,  1  Denio 
(N.  Y.),  624. 

8  State  v.  Taylor,  29  Ind.  519  ;  State  v.  Buckman,  8  N.  H.  203. 


NUISANCE.  197 

stream,  so  as  to  make  the  water  stagnant  and  pestifer- 
ous.1 In  New  Hampshire,  the  prevention  of  the  pas- 
sage offish  by  a  dam  constructed  across  a  non-navigable 
stream  is  indictable  at  common  law.2 

Other  acts  may  or  may  not  be  nuisances,  according 
to  the  attendant  circumstances.  A  lawful  business 
conducted  in  a  proper  manner,  in  a  proper  place,  and 
at  a  proper  time,  without  inconvenience  to  the  public, 
may  be  perfectly  innocent ;  while  the  same  business 
if  carried  on  in  an  improper  manner,  or  at  an  improper 
place,  or  at  an  improper  time,  to  the  annoyance  or 
injury  of  the  public,  will  become  abatable  as  a  nui- 
sance. The  manufacturing  of  gunpowder,  refining  oils, 
tanning  hides,  making  bricks,  are  examples  of  this 
class.3  So  the  setting  of  spring-guns.4  No  act,  how- 
ever, authorized  by  the  legislature  can  be  punished 
as  a  nuisance,  even  though  at  common  law  a  nuisance 
per  se.5  In  the  case  of  offensive  odors,  they  become  a 
nuisance  if  they  make  the  enjoyment  of  a  right  —  as  of 
a  passage  along  the  highway,  or  of  life  elsewhere  — 
uncomfortable,  though  the  odors  may  not  be  unwhole- 
some.6 

Profanity,  or  profane  cursing  and  swearing,  is  a 
special  form  of  nuisance,  indictable  at  common  law.7 

1  State  v.  Rankin,  3  S.  C.  438. 

2  State  v.  Franklin  Falls  Co.,  49  N.  H.  240. 

3  Attorney-General  v.  Stewart,  20  N.  J.  Eq.  415 ;  Wier's  Appeal, 
74  Pa.  St.  230 ;  State  v.  Hart,  34  Me.  36. 

*  State  v.  Morse,  31  Conn.  479. 

6  Com.  v.  Boston,  97  Mass.  555 ;  Danville,  &c.  R.  R.  t'.  Com.,  73 
Pa.  St.  29  ;  People  v.  New  York  Gas  Light  Co.,  64  Barb.  (N.  Y.)  55. 

6  Rex  v.  White,  2  C.  &  P.  485;  State  v.  Payson,  37  Me.  361; 
State  r.  Purse,  4  McCord  (S.  C),  472. 

1  State  v.  Powell,  70  N.  C.  47. 


198  CRIMINAL  LAW. 

But  it  has  been  held  that  a  single  instance  of  swearing 
will  not  constitute  the  offence :  there  must  be  such 
repetition  as  to  make  the  offence  a  common  nuisance.1 
Eavesdroppers,  common  scolds,  railers  and  brawlers, 
common  drunkards,  common  barrators,  and  the  like, 
persons  guilty  of  open  obscenity  of  conduct  or  lan- 
guage, of  blasphemy,  of  profanity,  or  who  keep  dis- 
orderly houses,  as  for  gaming  or  prostitution,  or  make 
disorderly  and  immoral  exhibitions,  or  promote  lot- 
teries, or  carry  about  persons  affected  with  contagious 
disease,  or  make  unseemly  noises  at  improper  times 
and  places,  —  may  all  be  included  under  the  general 
category  of  common  nuisances,  if  the  several  acts 
work  injury  to  the  public,  punishable  at  common  law, 
unless  otherwise  provided  for  by  statute.2 

§  183.  Prescription.  Public  Benefit.  —  The  lapse  of 
time  does  not  give  the  right  to  maintain  a  nuisance. 
No  one  can  prescribe  against  the  State,  against  which 
the  Statute  of  Limitations  does  not  run,  and  which  is 
not  chargeable  with  laches.  It  has  indeed  been  said 
by  high  authority,  that  where  a  useful  trade  or  busi- 
ness has  been  established,  away  from  population,  it 
may  be  continued,  notwithstanding  the  approach  of 
population.3  So,  too,  it  has  been  held  that  a  business 
established  in  a  neighborhood  where  offensive  trades 
already  exist,  which,  though  individually  offensive, 
does  not  materially  add  to  the  already  existing  nui- 
sance, may  be  permitted.4     And  in  one  case  at  least 

1  State  v.  Jones,  9  Ired.  (N.  C.)  38;  State  v.  Graham,  3  Sneed 
(Term.),  134. 

2  4  BI.  Com.  167  et  seq  and  notes,  Sharswood's  ed. ;  Barker  v.  Com., 
19  Pa.  412;  Rex  v.  Moore,  3  B.  &  A.  184. 

«  Abbott,  C.  J.,  Rex  v.  Cross,  2  C.  &  P.  483. 
*  Rex  v.  Watts,  M.  &  M.  281. 


NUISANCE.     PERJURY.  199 

in  this  country  the  doctrine  of  the  first  case  seems 
to  have  been  accepted.1  But  it  is  questionable  w  hether 
this  is  now  the  law  in  England.2  And  the  very  decided 
weight  of  authority  in  this  country  is  to  the  contrary 
on  both  points.8  Nor  is  it  any  excuse  that  the  public 
benefit  is  equal  to  the  public  inconvenience  ;4  nor  that 
similar  nuisances  have  been  tolerated.5 


v*W 


PERJURY. 


§  184.  "  Perjury,  by  the  common  law,  secmeth  to  be\ 
''a  wilful  false  oath,  by  one  who  being  lawfully  required 
to  depose  the  truth,  in  any  proceeding  in  a  course  of 
justice,  swears  absolutely  in  a  matter  of  some  conse- 
quence, to  the  point  in  question,  whether  he  be  be- 
lieved or  not." 6  Modern  legislation  has  allowed 
persons  having  conscientious  scruples  against  taking 
an  oath,  to  substitute  an  affirmation  for  the  oath. 

An  oath  is  a  declaration  of  a  fact  made  under  the 
religious  sanction  of  an  appeal  to  the  Supreme  Being 
for  its  truth. 

An  affirmation  is  substantially  like  an  oath,  omitting 
the  sanction  of  an  appeal  to  the  Supreme  Being,  and 

i  Ellis  v.  State,  7  Blackf.  (Ind.)  534. 

2  Reg.  v.  Fairie,  8  E.  &  B.  486. 

8  Taylor  v.  People,  6  Parker  C.  C.  347;  Com.  v.  Upton,  6  Gray 
(Mass.),  476  ;  People  v.  Cunningham,  1  Denio  (N.  Y.),  524  ;  Com.  v. 
Van  Sickle,  1  Bright  (Pa.),  69;  Ash-Brook  v.  Com.,  1  Bush  (Ky.), 
139 ;  Douglas  v.  State,  4  Wis.  387. 

*  Stale  v.  Raster,  35  Iowa,  221  ;  Hart  v.  Albany,  9  Wend.  (N.  Y.) 
571;  Respublica  o.  Caldwell,  1  Dall.  (U.  S.)  150. 

6  People  v.  Mallory,  4  T.  &  C.  (N.  Y.)  567 ;  Com.  v.  Deerfield, 
6  Allen  (Mass.),  449. 

6  1  Hawk.  P.  C.  c.  69,  §  1 ;  Com.  v.  Pollard,  12  Mot  (Mass.)  225, 
State  v.  Wall,  9  Yerg.  (Tenn.)  347  ;  State  v.  Simons,  30  Vt.  620. 


200  CRIMINAL  LAW. 

substituting  therefor  the  "  pains  and  penalities "  ot 
perjury. 

The  proper  form  of  administering  either  is  that 
which  is  most  binding  on  the  conscience  of  the  affiant, 
and  in  accordance  with  his  religious  belief.  But  the 
form  is  not  essential,  even  though  it  be  prescribed  by 
statute,  if  there  be  a  substantial  compliance,  —  the  pre- 
scription being  regarded  as  directory  merely.1  And, 
therefore,  if  a  book  other  than  the  Evangelists  be  un- 
wittingly used  it  does  not  vitiate  the  oath.2  Nor 
can  a  prosecution  for  perjury  be  sustained  upon  testi- 
mony given  orally,  which  the  law  requires  to  be  in 
writing,3  nor  upon  an  affidavit  not  required  by  law.4 
But  when  the  witness  is  sworn  generally  to  tell  the 
truth,  instead  of  to  make  true  answers,  according  to 
the  usual  practice,  false  testimony  is  still  perjury.5 

§  185.  Lawfully  required.  —  But,  to  be  valid,  the  oath 
must  be  administered  by  a  court  or  magistrate  duly 
authorized.  If  a  court  having  no  jurisdiction  of  the 
person  or  subject-matter,  or  magistrate  not  duly  au- 
thorized or  qualified,  administer  the  oath,  it  has  no 
binding  force  or  legal  efficacy,  and  no  prosecution  for 
perjury  can  be  predicated  upon  it.  It  is  extra-judicial, 
if  the  law  does  not  require  the  oath,  or,  if  the  oath  be 
required,  an  unauthorized  person  administer  it.6     But 

i  Com.  v.  Smith,  11  Allen  (Mass.),  243;  Rex  v.  Haley,  1  C  &  D. 
C.  C.  194. 

2  People  v.  Cook,  4  Seld.  (N.  Y.)  67  ;  Ashburn  v.  State,  15  Ga.  246. 

3  State  v.  Trask,  42  Vt.  152 ;  State  v.  Simons,  30  Vt.  620. 

4  Ortner  v.  People,  6  T.  &  P.  (N.  Y.  S.  C.)  548 ;  People  v.  Gaige, 
26  Mich.  30. 

&  State  v.  Keene,  26  Me.  33. 

6  People  v.  Travis,  4  Parker  C.  C.  213;  State  v.  Hayward,  1  N.  & 
McC.  (S.  C.)  546;  Com.  c.  Pickering,  8  Gratt.  (Va.)  628;  Muir  v 


PERJURY.  201 

if  jurisdiction  and  authority  exist,  formal  irregularities, 

—  as  where  the  witness  is  sworn  to  tell  the  truth  and 
the  whole  truth,  omitting  from  the  outh  the  words 
"  and  nothing  but  the  truth,"  2  or  there  is  error  in 
some  of  the  proceedings,  of  which  the  oath  is  a  part,'- 

—  are  immaterial. 

§  186.  "Judicial  proceeding"  embraces  not  only  the 
main  proceeding,  but  also  subsidiary  proceedings  in- 
cidental thereto ;  as  a  motion  for  continuance,3  or  an 
affidavit  initiatory  of  a  proceeding,4  or  in  aid  of  one 
pending,5  or  a  motion  for  removal,0  or  for  a  new  trial," 
or  a  hearing  in  mitigation  of  sentence,8  or  for  taking 
bail,9  or  on  a  preliminary  inquiry  as  to  the  competency 
of  a  witness  or  juror.10  It  also  embraces  any  proceeding 
wherein  an  oath  is  required  by  statute,  if  the  oath  is  to 
an  existing  fact,  and  not  merely  promissory.11     It  has 

State,  8  Blackf.  (Ind.)  154;  Pankey  v.  People,  1  Scammon  (111.),  80; 
United  States  v.  Babcock,  4  McLean  (C  Ct.),  113 ;  State  v.  Plummer, 
50  Me.  217  ;  State  v.  Wyatt,  21  Hay.  (N.  C.)  56. 

1  State  v.  Gates,  17  N.  PI.  373. 

2  State  v.  Lavelly,  9  Mo.  824.  See  also  United  States  v.  Babcock, 
4  McLean  (C.  Ct.),  113;  State  v.  Hall,  7  Blackf.  (Ind.)  25;  State  v. 
Dayton,  3  Zabr.  (N.  J.)  49;  Van  Steenburgb  v.  Kortz,  10  Jobns. 
(N.  Y.)  167. 

3  State  v.  Sharpe,  16  Iowa,  36. 

4  Rex  v.  Parnell,  2  Burr.  806  ;  Carpenter  v.  State,  4  How.  (Miss.) 
163. 

&  White  i;  State,  1  S.  &  M.  (Miss.)  149;  Rex  v.  White,  M.  &  M 
271. 

o  Pratt  v.  Price,  11  Wend.  (N.  Y.)  127. 
t  State  v.  Chandler,  42  Vt.  446. 

8  State  v.  Keenan,  8  Rich.  (S.  C.)  456 

9  Com.  r.  Ilatliehl,  107  Mass.  227. 

i«  Coin.  v.  Stockley,  10  Leigh  (Va.),  678;  State  v.  Wall,  9  Yerg 
(Tenn.)  347. 

11  Rex  v.  Lewis,  1  Strange,  70 ;  State  v.  Dayton,  3  Zabr.  (N.  J.  > 
49. 


202  CRIMINAL  LAW. 

also  been  held  to  embrace  a  proceeding  required  or 
sanctioned  by  "  the  common  consent  and  usage  of 
mankind."  1 

§  187.  Wilful.  False.  —  The  oath  must  be  wilfully 
false  to  constitute  the  offence.  If  it  be  taken  by  mis- 
take, or  in  the  belief  that  it  is  true,  or  upon  advice  of 
counsel,  sought  and  given  in  good  faith,  that  it  may 
lawfully  be  taken,  the  offence  is  not  committed.2 

Some  authorities  hold  that  one  may  commit  perjury 
notwithstanding  he  believes  what  he  swears  to  to  be 
true,  if  it  be  made  to  appear  that  he  had  no  probable 
cause  for  his  belief.3  But  it  certainly  cannot  be  con- 
sidered as  established  law  that  one  who  swears  incon- 
siderately, or  even  rashly,  to  what  he  believes,  though 
upon  very  insufficient  data,  or  even  negligently,  to  be 
true,  is  guilty  of  perjury.4 

Oaths  of  office,  being  in  the  nature  of  promises  of 
future  good  conduct,-  and  not  affirming  or  denying  the 
truth  or  falsehood  of  an  existing  fact  within  the  knowl- 
edge of  the  affiant,  do  not  come  within  the  provision 
of  the  law  of  perjury.5 

i  State  v.  Stephenson,  4  McC.  (S.  C.)  165;  Arden  v.  State,  11 
Conn.  408. 

2  Tuttle  v.  People,  36  N.  Y.  434  ;  United  States  v.  Connor,  3 
McLean  (C.  Ct.),  573;  Hood  v.  State,  44  Ala.  81;  Cothran  v.  State, 
39  Miss.  541. 

3  State  v.  Knox,  Phil.  (N.  C.)  312;  People  v.  MeKinney,  3  Parker 
C.  C.  510;  Com.  v.  Cornish,  6  Binn.  (Pa.)  249. 

4  Com.  v.  Brady,  5  Gray  (Mass.),  78;  United  States  v.  Shellmire, 
1  Bald.  (C.  Ct.)  370;  State  v.  Lee,  3  Ala.  602;  State  v.  Cochran, 
1  Bailey  (S.  C),  50;  Com.  v.  Cook,  1  Rob.  (Va.)  729;  United  States 
v.  Atkins,  1  Sprague,  558 ;  Jesse  v.  State,  20  Ga.  156 ;  United  States 
v.  Stanley,  6  McLean,  409;  1  Hawk.  P.  C.  c.  69,  §  2;  State  v. 
Chamberlain,  30  Vt.  559;  Com.  v.  Thompson,  3  Dana  (Ky.),  301. 

5  1  Hawk.  P.  C.  c.  m,  §  3  ;  Statu  v.  Dayton,  3  Zahr.  (N.  J.)  49. 


PERJURY.  203 

It  is  immaterial  whether  the  witness  gives  hie 
mony  voluntarily  or  under  compulsion,  if  his  testimony 
be  required  by  law  ;2  as  also,  it  has  been  held,  whether 
he  is  legally  competent  or  incompetent  to  testify,  if  his 
testimony  be  actually  taken.2  But  this  last  proposi- 
tion is  not  universally  accepted  as  sound.  Thus,  if  a 
party  to  the  record  be  sworn,  the  law  not  admitting 
him  as  a  competent  witness,  false  testimony  by  him  is 
no  perjury.3  Soithas  been  held  that  it  is  no  per- 
jury to  swear  falsely  to  a  place  of  residence  in  ob- 
taining ^  a  certificate  of  naturalization,  the  oath  to  that 
fact  being  voluntary  and  immaterial  under  the  law.4 
So  if  an  immaterial  allegation  of  fact  be  introduced 
and  sworn  to  in  a  petition  to  court.6  Nor  will  a  false 
answer  in  chancery,  the  bill  not  calling  for  a  sworn 
answer,  amount  to  perjury.9  Swearing  that  a  certain 
fact  is  true  according  to  the  affiant's  knowledge  and 
belief,  is  perjury,  if  he  knows  to  the  contrary,  or  if  he 
believes  to  the  contrary,  even  though  the  fact  be  true.7 
So,  perhaps,  if  he  have  no  knowledge  or  belief  in  the 
matter.8 

1  Com.  o.  Knight,  12  Mass.  274. 

2  Chamberlain  v.  People,  23  N.  Y.  85;  Montgomery  v.  State,  10 
Ohio,  220;  State  v.  Molier,  1  Dev.  (N.  C.)  263. 

8  State  v.  Hamilton,  7  Mo.  300. 
*  State  v.  Helle,  2  Hill  (S.  C),  290. 

5  Gibson  v.  State,  44  Ala.  17.  See  also  State  v.  Hamilton,  7  Mo. 
300. 

6  Silver  o.  State,  17  Ohio,  65. 

7  State  v. . Cruikshank,  6  Blackf.  (Ind.)  62;  Patrick  v.  Smoke, 
3  Strobh.  (S.  C.)  147;  United  States  v.  Shelmire,  1  Bald.  (C.  Ct.) 
370;  Wilson  v.  Nations,  5  Yerg.  (Tenn.)  211;  Rex  v.  Pedkv,  1  Leach, 
325. 

8  State  v.  Gates,  17  N.  EL  373 ;  1  Hawk.  P.  C.  c.  69,  §  6. 


204  CRIMINAL  LAW. 

§  1 88.  Materiality.  —  That  is  material  which  tends 
to  prove  or  disprove  any  fact  in  issue,  although  this 
fact  be  not  the  main  fact  in  issue,  but  only  incidental. 
Thus,  where  a  woman  was  charged  with  larceny,  and 
the  defence  was  that  the  goods  stolen  belonged  to  her 
husband,  falsely  swearing,  by  the  alleged  husband,  that 
he  had  never  represented  that  she  was  his  wife  is  per- 
jury whether  she  was  or  was  not  in  fact  his  wife. 
And  it  is  also  material  whether  it  has  any  effect 
upon  the  verdict  or  not.1  So  where  three  persons 
were  indicted  for  a  joint  assault,  and  it  was  contended 
that  it  was  immaterial,  if  all  participated  in  it,  by 
which  certain  acts  were  done,  it  was  held  that  evi- 
dence attributing  to  one  acts  which  were  done  by 
another  was  material.2  So  all  answers  to  questions 
put  to  a  witness  on  cross-examination,  which  bear  upon 
his  credibility,  are  material.3  But  substantial  truth  is 
all  that  is  necessary,  and  slight  variations,  as  to  time, 
place,  or  circumstance  will  not,  in  general,  be  ma- 
terial ;  as  where  one  swears  to  a  greater  or  less  number, 
or  a  longer  or  shorter  time,  or  a  different  place,  or  a 
different  weapon,  than  the  true  one,  —  these  circum- 
stances not  bearing  upon  the  main  issue.4  A  false 
statement  as  to  the  terms  of  a  contract  which  is  void 
by  the  Statute  of  Frauds,  made  in  a  proceeding  to 
enforce  the  contract,  has  been  held  to  be  immate- 
rial, and  no  perjury,  whichever  way  the  party  swears, 


i  Com.  v.  Grant,  116  Mass.  17 ;  Wood  v.  People,  59  N.  Y.  117 ' 
1  Hawk.  P.  C.  c.  69,  §§  8  and  9. 
2  State  v.  Norris,  9  N.  H.  96. 
8  Reg.  v.  Overton,  C.  &  M.  655. 
*  1  Hawk.  P.  C.  c.  69,  §  8 


PERJURY.  205 

the  contract  being  void  ; 1  while  a  like  false  state- 
ment in  a  proceeding  to  avoid  the  contract  would  be 
material.2  And  the  fact  that  an  indictment  is  had. 
or  that  a  judgment  is  reversed,  does  not  affect  the 
question  of  the  materiality  of  the  evidence  given  to 
sustain  it;3  nor  does  the  fact  that  the  evidence  is 
withdrawn  from  the  case.4  Whether  materiality  is  a 
question  of  law  for  the  court  or  of  fact  for  a  jury, 
is  a  point  upon  which  the  authorities  are  about 
equally  divided.5 

§  189.  Evidence.  —  In  prosecutions  for  perjury,  a 
single  witness  (contrary  to  the  general  rule  of  evi- 
dence) to  the  falsehood  of  the  alleged  oath  is  not  suffi- 
cient to  maintain  the  case,  since  this  would  be  but  oath 
against  oath.  There  must  be  two  witnesses  to  the 
falsity,  or  circumstances  corroborating  a  single  wit- 
ness.6 Nor  can  a  man  be  convicted  of  perjury  by 
showing  that  he  has  sworn  both  ways.  It  must  be 
shown  which  was  the  false  oath.7 

§  190.  Subornation.  —  Subornation  of  perjury  is  the_ 
procuring  of  perjured   testimony.     In   order   to   the 

i  Rex  v.  Dunston,  Ry.  &  M.  109. 

2  Reg.  v.  Yates,  C.  &  M.  132. 

3  Reg.  v.  Meek,  9  C.  &  P.  513 ;  Com.  v.  Tobin,  108  Mass.  426. 
*  Reg.  v.  Philpott,  3  C  &  K.  135. 

6  See  the  cases  collected  in  2  Greenl.  Ev.  (13th  ed.)  §  196,  note ; 
also  2  Bishop  Cr.  Law,  §  1039  a. 

6  State  v.  Raymond,  20  Iowa,  582;  Com.  p.  Pollard,  12  Met. 
(Mass.)  225;  State  v.  Molier,  1  Dev.  (N.  C.)  263;  State  v.  Heed,  57 
Mo.  252. 

7  Reg.  v.  Hughes,  1  C.  &  K.  519 ;  Jackson's  Case,  1  Lewin,  270 ; 
State  v.  J.  B.,  1  Tyler  (Vt),  269;  State  v.  Williams,  30  Mo.  364; 
Schwartz  v.  Com.,  27  Grat.  (Va.)  1025.  But  see  People  v.  Burden, 
9  Barb.  (N.  Y.)  467,  which,  however,  is  examined  and  denied  to  be 
law  in  Schwartz  v.  Com.,  ubi  supra. 


206  CRIMINAL  LAW. 

incurring  of  guilt  under  this  charge,  it  must  appear 
that  the  party  procuring  the  false  testimony  must 
know  not  only  that  the  testimony  will  be  false,  but 
also  that  it  will  be  corrupt,  or  that  the  party  giving 
the  testimony  will  knowingly,  and  not  merely  igno- 
rantly,  testify  falsely.1  And  a  conviction  may  be  had 
upon  the  testimony  of  a  single  witness,2  unless  that 
witness  be  the  party  who  committed  the  perjury  ;  in 
which  case  he  will  need  corroboration.3  But  a  person 
cannot  be  convicted  of  attempted  subornation  of  per- 
jury by  proof  that  he  attempted  to  procure  a  person  to 
swear  falsely  in  a  suit  not  yet  brought,  but  which  he 
intends  to  bring.  There  must  be  some  proceeding 
pending,  or  the  procured  false  testimony  must  con- 
stitute a  proceeding  in  itself.4 

PIRACY. 

§  191.  "  Piracy  at  the  common  law  consists  in  commit- 
ting those  acts  of  robbery  and  depredation  upon  the 
high  seas  which,  if  committed  on  the  land,  would  have 
amounted  to  felony  there."5  It  was  originally  punish- 
able at  common  law  as  petit  treason,  but  not  as  a 
felony  ;  and  later,  by  statute,6  it  is  made  triable  accord- 
ing to  the  course  of  the  common  law,  subject  to  the 

i  Com.  v.  Douglass,  5  Met.  (Mass.)  241;  Stewart  v.  State,  22  Ohio 
St.  477. 

2  Com.  v.  Douglass,  ubi  supra.  ' 

8  People  v.  Evans,  40  N.  Y.  1. 

*  State  v.  Joaquin,  69  Me.  218 ;  People  v.  Chrystal,  8  Barb.  (N.  Y 
S.  C.)  545.    But  see  State  v.  Whittemore,  60  N.  H.  345. 

6  1  Russ.  Crimes,  bk.  2,  c.  8,  §  1. 

e  28  Hen.  VIII.  c.  15. 


PIRACY.  207 

punishment  —  capital — provided  by  the  civil  law.1 
Under  the  law  of  nations  (which  is  part  of  the  common 
law),  it  may  be  committed  by  an  uncommissioned 
armed  vessel  attacking  another  vessel,2  or  by  feloni- 
ously taking  from  the  possession  of  the  master  the 
ship  or  its  furniture,  or  the  goods  on  board,  whether 
the  taking  be  done  by  strangers,  or  by  the  crew  or 
passengers  of  the  vessel.3 

Robbery  on  board  a  vessel  sailing  under  a  foreign 
flag  is  not  piracy,4  but  the  category  of  piratical  acts 
has  been  much  extended  by  statutes.5 

As  the  offence,  if  committed  at  all,  is  committed  on 
the  high  seas,  that  is,  out  of  the  jurisdiction  of  the 
States,  the  adjudications  and  judicial  decisions  in  this 
country  have  been  mostly  confined  to  cases  arising 
under  the  statutory  jurisdiction  of  the  courts  of  the 
national  government.6 

A  pirate  is  an  outlaw,  and  may  be  captured  and 
brought  to  justice  by  the  ship  of  any  nation." 

1  1  Russ.  Crimes,  bk.  2,  c.  8,  §  1.  This  statute  has  been  repealed 
by  Stat.  1  Vict.  c.  88,  §  1. 

2  Savannah  Pirates,  Warburton's  Trial,  370. 

3  Attorney-General  v.  Kwok-a-Sing,  L.  R.  5  P.  C.  179  ;  Rex  v. 
Dawson,  Pi  How.  St.  Tr.  451.  See  also  United  States  v.  Tully, 
1  Gall.  C.  Ct.  247;  United  States  v.  Jones,  3  Wash.  C.  Ct.  209; 
United  States  v.  Gibert,  2  Sumner  C.  Ct.  19;  United  States  v. 
Procter,  5  Wheat.  (U.  S.)  184 ;  The  Antelope,  10  Wheat.  (U.  S.)  0U 

*  United  States  v.  Palmer,  3  Wheat.  (U.  S.)  010. 

5  United  States  v.  Brig  Malek  Abdel,  2  Bow.  (U.  S.)  210.  On 
the  question  of  jurisdiction  of  a  crime  committed  on  board  a  foreign 
vessel,  see  the  very  learned  and  elaborate  case  of  Com.  v.  McLoon, 
101  Mass.  1. 

6  For  the  statutory  law  upon  this  subject  see  U.  S.  Rev.  Stat. 
§  5368. 

7  The  Marianna  Flora,  11  Wheat  (U.  S.)  1. 


208  CRIMINAL  LAW 

A  commission  purporting  to  be  issued  by  an  un- 
known government,  or  by  a  province  of  an  unac- 
knowledged nation,  affords  no  protection.1 


POLYGAMY. 

See  Bigamy. 

RAPE. 


u\v 


§  192.  Rape  is  the  unlawful  carnal  knowledge  of  a 
woman  by  force,  without  her  .consent.2 

§  193.  Carnal  Knowledge.  —  Carnal  knowledge,  it  is 
now  generally  held,  both  in  this  country  and  in  Eng- 
land, is  accomplished  by  penetration  without  emis- 
sion,3 though  it  was  formerly  doubted  if  both  were 
not  necessary,  —  a  doctrine  still  held  in  Ohio.4  And 
penetration  is  sufficient,  however  slight.5 

The  conclusive  presumption  of  the  common  law  that 
a  boy  under  the  age  of  fourteen  is  incapable  of  com- 
mitting rape  may  have  been  based  upon  the  theory 
that  emission  as  well  as  penetration  was  necessary  to 
the  commission  of  the  crime.6 

§  194.  Force  and  Violence.  —  The  force  must  be  Such 
as  overcomes  resistance,  which,  when  the  woman  has 
the  power  to  exert  herself,7  should  be  with  such  vigor 

i  United  States  v.  Klintock,  5  Wheat.  (U.  S.)  144. 

2  See  post,  §  195. 

8  Penn.  v.  Sullivan,  Add.  (Pa.)  143;  Walter  v.  State,  40  Ala 
325;  Com.  v.  Thomas,  Va.  Cas.  307;  State  v.  Hargrave,  65  N.  0. 
466;  St.  9  Geo.  IV.  c.  81. 

4  Blackburn  v.  State,  22  Ohio,  n.  s.  102. 

5  State  v.  Hargrave,  65  N.  C.  466 ;  Reg.  v.  Hugh,  2  Moody,  190. 

6  Com.  v.  Green,  2  Pick.  (Mass.)  380;  Williams  v.  State,  14  Ohio, 
222,  where  the  presumption  is  held  to  be  rebuttable  by  proof  of 
puberty.     See  also  People  v.  Randolph,  2  Park.  C.  R.  (N.  Y.)  194. 

7  See  next  section. 


RAPE.  209 

and  persistence  as  to  show  that  there  is  no  consent. 
Any  less  resistance  than  with  all  the  might  gives  rise 
to  the  inference  of  consent.1  Where,  however,  there 
is  no  resistance,  from  incapacity,  the  only  force  neces- 
sary is  the  force  of  penetration.  And  fraud  does  not 
here,  as  in  some  other  cases,  supply  the  place  of  force. 
If  the  consent  be  procured,  although  by  fraud,  there 
is  no  rape.2  Yet  it  has  been  held  that  where  the 
ravishment  was  under  the  pretence  of  medical  treat- 
ment, consented  to  in  the  belief  of  its  necessity,  this 
was  an  assault,  and,  it  seems,  a  rape.3  But  where  the 
will  is  overcome  by  the  force  of  fear,  though  there  be 
no  resistance,  the  offence  may  be  committed.4 

§  195.  Without  consent.  —  According  to  the  old  defi- 
nition, the  act  must  be  against  the  will  of  the  woman  ; 
but  these  words  are  now  held  to  mean  without  her  con- 
sent;5 If  the  woman  be  in  a  state  of  insensibility,  so 
that  she  is  incapable  of  exercising  her  will,  whether 
that  incapacity  is  brought  about  by  the  act  of  the  ac- 
cused, intentionally  or  unintentionally,  or  by  the  volun- 
tary act  of  the  woman  herself,  and  the  ravishment  is 
effected  with  a  knowledge  of  such  incapacity,  the  of- 

1  People  v.  Dohring,  59  N.  Y.  374;  Taylor  v.  State,  50  Ga.  79; 
State  v.  Burgdorf,  63  Mo.  65 ;  People  v.  Brown,  47  Cal.  447  ;  Com.  v. 
McDonald,  110  Mass.  405. 

2  McNair  v.  State,  53  Me.  453 ;  State  v.  Burgdorf,  ubi  supra  ; 
Don  Moran  v.  People,  25  Mich.  356 ;  Reg.  v.  Saunders,  8  C.  &  P.  265  ; 
Clark  v.  State,  30  Texas,  448. 

«  Reg.  v.  Case,  4  Cox  C.  C.  220. 

«  Reg.  v.Woodhurst,  12  Cox  C.  C.  443;  Wright  v.  State,  8  Humph. 
(Tenn.)  194;  Croghan  v.  State,  22  Wis.  444;  People  v.  Dohring,  ubi 
supra;  Pleasant  i>.  State,  8  Eng.  (Ark.)  360. 

e  Reg.  v.  Fletcher,  10  Cox  C.  C  248 ;  Reg.  v.  Barrow,  11  Cox  C  C. 
191 ;  Com.  v.  Burke,  116  Mass.  376  ;  post,  §  207. 

14 


210  CRIMINAL  LAW. 

fence  is  committed.1  And  the  same  would  be  true 
if  the  woman  were  idiotic,  insane,  or  asleep.2  Against 
the  will  or  without  consent  means  "ah  active  will. 
There  is  a  difference  between  consent  and  submission. 
The  submission  of  a  child  overcome  by  fear,  perhaps, 
or  one  of  tender  years,  ignorant  of  the  nature  of  the 
act,  is  no  consent.3  By  the  law  of  England,  a  child 
under  ten  years  of  age  is  conclusively  presumed  to  be 
incapable  of  consenting.4  In  this  country,  the  authori- 
ties differ,  the  weight  of  authority  being  in  favor  of 
the  English  doctrine.5 


W& 


RECEIVING   8T0LEN    GOODS. 


§  196.  Receiving  stolen  goods,  knowing  them  to  be 
stolen,  was  originally  an  accessorial  offence,  of  which 
the  receiver  could  only  be  convicted  after  the  convic- 
tion of  the  thief;  but  it  long  since  became,  both  in 
England  and  in  this  country,  a  substantive  offence, 
triable  separately,  and  without  reference  to  the  crime 
of  the  principal.6 

1  Reg.  v.  Champlin,  1  Den.  C.  C  89 ;  Com.  v.  Burke,  ubi  supra ; 
Reg.  v.  Barrett,  12  Cox  C.  C.  498. 

2  Ibid. ;  Reg.  v.  Fletcher,  8  Cox  C.  C.  131 ;  Reg.  v.  Mayers,  12 
Cox  C.  C.  311 ;  8.  c.  1  Green's  Cr.  Law  Rep.,  and  valuable  note  by 
Mr.  Green. 

8  Reg.  v.  Day,  9  C.  &  P.  722 ;  Reg.  v.  Lock,  12  Cox  C.  C.  244  ; 
Reg.  v.  Banks,  8  C.  &  P.  574. 

*  1  Bl.  Com.  212. 

6  Hays  v.  People,  1  Hill  (N.  Y.),  351,  denied  in  Smith  v.  State,  12 
Ohio,  n.  s.  406.  See  also  Williams  v.  State,  47  Mo.  609;  Fizele 
v.  State,  25  Wis.  364;  Gorsha  v.  State,  56  Ga.  36;  People  v. 
McDonald,  9  Mich.  150. 

8  Reg.  v.  Caspar,  2  Moody  C.  C.  101 ;  s.  c.  2  Leading  Cr.  Cas. 
451  and  note  ;  Reg.  v.  Hughes,  8  Cox  C.  C.  278 ;  Com.  v.  King, 
9  Cush.  (Mass.)  284;  Loyd  v.  State,  42  Ga.  221 ;  State  v.  Coppenburg, 
2  Strobh.  (S.  C.)  273;  State  v.  Weeton,  9  Conn.  527. 


RECEIVING   STOLEN  GOODS.  211 

Receiving  stolen  goods,  knowing  them  to  be  stolen, 
for  the  purpose  of  aiding  the  thief  in  concealing  them 
or  in  escaping  with  them,  is  equally  an  offence  as  if 
the  receiving  be  done  with  the  hope  of  obtaining  a 
reward  from  the  owner,  or  other  pecuniary  gain  or  ad- 
vantage,1 But  there  must  be  a  fraudulent  intent  to 
deprive  the  true  owner  of  his  interest  in  them.2 

§  197.  Receiving.  —  To  constitute  one  a  receiver,  the 
stolen  goods  need  not  have  come  into  his  actual  man- 
ual possession.  It  is  enough  if  they  have  come  under 
his  observation  and  control,  as  where  a  person  allows  a 
trunk  of  stolen  goods  to  be  placed  on  board  a  vessel  as 
part  of  his  luggage.3  If  one  finds  property  which  he 
has  reason  to  believe  was  stolen,  and  seeks  to  turn 
it  to  his  pecuniary  advantage,  he  may  be  convicted  of 
receiving  stolen  goods.4  The  owner  may  be  a  receiver 
as  well  as  a  thief,  if  the  goods  be  received  from  one 
who  stole  them  from  the  owner's  bailee.5  But  as  the 
wife  cannot,  under  any  circumstances,  steal  from  the 
husband,  one  who  receives  from  her  cannot  be  con- 
victed of  receiving  stolen  goods.6 

§  198.  Jurisdiction.  Evidence.  —  As  in  the  case  of 
larceny,  so  in  receiving  the  stolen  goods  the  receiver 

i  People  v.  Wiley,  3  Hill  (N.  Y.),  194;  State  v.  Rushing,  69 
N.  C  29 ;  Com.  v.  Bean,  117  Mass.  141 ;  Rex  v.  Davis,  6  C.  &  P. 
177;  People  v.  Caswell,  21  Wend.  (N.  Y.)  86;  State  v.  Hancock, 
2  R.  I.  474. 

2  Rice  v.  State,  3  Heisk.  (Tcnn.)  215;  People  v.  Johnson,  1  Parker 
C.  R.  (N.  Y.)  5G4;  Pelts  v.  State,  3  Blackf.  (Ind.)  28. 

8  State  v.  Scovel,  1  Mill  (S.  C),  274;  State  v.  St.  Clair,  17  Iowa, 
149  ;  Reg.  v.  Smith,  6  Cox  C.  C.  554. 

*  Com.  v.  Moreland,  27  Pitts.  L.  J.  (Pa.)  No.  45. 

6  People  v.  Wiley,  3  Hill  (N.  Y.),  194  ;  ante,  §  155. 

6  Queen  v.  Kenny,  2">  W.  R.  (179. 


212  CRIMINAL  LAW. 

in  one  State  may  be  convicted  though  the  goods  were 
stolen  in  another.1  Recent  possession,  without  any 
evidence  that  the  property  stolen  had  been  in  the  pos- 
session of  some  person  other  than  the  owner,  before  it 
came  to  the  alleged  receiver,  or  other  circumstances 
to  rebut  the  presumption  of  larceny,  is  rather  evidence 
of  larceny  than  of  receiving  stolen  goods.2 

RESCUE.       ESCAPE.       PRISON   BREACH. 

§  199.  These  are  analogous  offences  under  the  gen- 
eral category  of  hindrances  to  public  justice.  Few 
cases  at  common  law  have  occurred  in  this  country, 
the  several  offences  being  generally  matter  of  statutory 
regulation. 

§  200.  Rescue  is  "  the  forcibly  and^nojvnngbyjEree- 
,i/  ing  another  from  an  arrest  or  imprisonment^  If, 
therefore,  the  rescuer  supposes  the  imprisonment  to 
be  in  the  hands  of  a  private  person  and  not  of  an 
officer,  he  is  not  guilty,  as  the  imprisonment  must 
be  a  lawful  one.4  It  is  essential  that  the  deliverance 
should  be  complete,  otherwise  the  offence  may  be  an 
attempt  merely.6 

§  201.  Escape  is  the  going  away  without  force  out 
-  of  his  place  of  lawful  confinement  by  the  prisoner  him- 
self, or  the  negligent  or  voluntary  permission  by  the 

1  Com.  v.  Andrews,  2  Mass.  14 ;  People  v.  Wiley,  3  Hill  (N.  Y.), 
194. 

2  Rex  v.  Cordy,  cited  in  note  to  Pomeroy's  edition  of  Archbold 
Cr.  Pr.  &  Pi.  vol.  ii.  p.  479 ;  Reg.  v.  Langmaid,  9  Cox  C  C.  464. 

8  4  Bl.  Com.  131. 

«  State  v.  Hilton,  26  Mo.  199. 

6  State  v.  Murray,  15  Me.  100. 


$ 


A 


ESCAPE.    PRISON  BREACH.  213 

officer  having  custody,  of  such  going  away.1     The  es- 
cape  must   be   from   a  lawful  confinement.     And   if 
the  arrest  be  by  a  private  person  without  warrant, 
V  though  legal,  yet  if  the  custody,  without  bringing  the 
vparty  before  a  magistrate,  be  prolonged  for  an  unrea- 
ryJ  sonable  period,  the  escape  will  be  no  offence  ;   and 
\}\    although  it  seems  to  have  been  held,  in  this  country, 
/that  after  an  arrest  voluntarily  made  by  a  private  per- 
q5     son  without  warrant,  he  may  let  the  prisoner  go  with- 
rji        out  incurring  guilt,  by  the  common  law,2  such  private 
person  will  be  guilty,  if  he  do  not  deliver  over  the 
arrested  party  to  a  proper  officer.3     If  the  warrant  on 
which  the  arrest  is  made  be  void,  neither  the  prisoner 
nor  the  officer  is  liable  for  an  escape.4 

§  202.  Prison  breach  is  the  forcible  breaking  and 
going  away  out  of  his  place  of  lawful  confinement  by 
the  prisoner.  It  is  distinguished  from  escape  by  the 
fact  that  there  must  be  a  breaking  of  the  prison. 
There  must  also  be  an  exit,5  in  order  to  constitute 
the  offence.  The  imprisonment  must  be  lawful,  but 
it  is  immaterial  whether  the  prisoner  be  guilty  or 
innocent.6 


i  Com.  v.  Sheriff,  1  Grant  (Pa.),  187 ;  State  v.  Doud,  7  Conn.  384; 
Riley  v.  State,  16  Conn.  47 ;  Null  v.  State,  34  Ala.  262 ;  Luckey  v. 
State,  14  Texas,  400. 

2  Habersham  v.  State,  56  Ga.  61. 

3  2  Hawk.  P.  C.  c.  20,  §§  1-6. 

*  Housh  i>.  People,  75  111.  487  ;  Hitchcock  v.  Baker,  2  Allen  (Mass.), 
431.  State  v.  Leach,  7  Conn.  752  ;  Com.  v.  Crosby,  10  Allen  (Mass.), 
403 

5  2  Hawk.  P.  C  c.  18,  §  12. 

e  Com.  v.  Miller,  2  Ash.  (Pa.)  61  ;  Habersham  v.  State,  56  Ga.  61; 
Reg.  v.  Waters,  12  Cox  C.  C.  390.  Upon  the  general  subject  see 
2  Hawk.  P.  C.  c.  18-21 ;  1  Gab.  Cr.  L.  305  et  sea. 


214  CRIMINAL  LAW. 

A  prison  is  any  place  where  a  person  is  lawfully 
confined,  whether  it  be  in  the  stocks,  in  the  street, 
or  in  a  public  or  private  house.  Imprisonment  is  but 
a  restraint  of  liberty.1 

At  common  law,  the  punishment  of  the  several 
offences  was  the  same  as  would  have  been  inflicted 
upon  the  escaped  or  rescued  prisoner.2  It  is  now, 
however,  generally  a  subject  of  special  statute  regu- 
lation. 

RIOT.      ROUT.      UNLAWFUL    ASSEMBLY. 

§  203.  a  riot  is  a  tumultuous  disturbance  of  the 
peace,  by  three  or  more  persons  assembling  togetliej' 
of  their  own  authority,  with  an  intent,  mutually,  to 
assist  one  another  against  any  one  who  shall  oppose 
them,  in  the  execution  of  some  enterprise  of  a  private 
nature,  and  afterwards  actually  executing  the  same  in 
a  violent  and  turbulent  manner,  to  the  terror  of  the 
people,  whether  the  act  itself  be  lawful  or  unlawful.3 

A  rout  is  a  similar  meeting  upon  a  purpose,  which, 
if  executed,  would  make  them  rioters,  and  which  they 
actually  make  a  motion  to  execute.  It  is  an  attempt 
to  commit  a  riot. 

An  unlawful  assembly  is  a  mere  assembly  of  per- 
sons upon  a  purpose,  which,  if  executed,  would  make 
them  rioters,  but  which  they  do  not  execute,  or  make 
any  motion  to  execute.4 

A  like  assembly  for  a  public  purpose,  as  where  it  is 

i  2  Hawk.  P.  C.  c  18,  §  4. 

2  2  Hawk.  P.  C  c.  19,  §  22 ;  Com.  v.  Miller,  2  Ash.  (Pa.)  61. 
«  1  Hawk.  P.  C.  c.  65,  §  1 ;  State  v.  Russell,  45  N.  H.  83. 
*  1  Hawk.  P.  C.  c.  68,  §§  1,  8,  9  ;  4  Bl.  Com.  146. 


ROUT.    UNLAWFUL  ASSEMBLY.  215 

the  intent  of  a  riotous  assembly  to  prevent  the  execu- 
tion of  a  law  by  force,  or  to  release  all  prisoners  in  the 
public  jail,  is  treason.1 

It  has  been  held  that  an  unlawful  assembly,  armed 
with  dangerous  weapons,  and  threatening  injury,  to 
the  terror  of  the  people,  amounts  to  a  riot,  even  before 
it  proceeds  to  the  use  of  force.2 

Two  persons,  it  has  also  been  held,  with  a  third 
aiding  and  abetting,  may  make  a  riot.3 

That  the  assembly  is  in  its  origin  and  beginning  a 
lawful  one,  is  immaterial,  if  it  degenerates,  as  it  may, 
into  an  unlawful  and  riotous  one.4 

§  204.  The  violence  necessary  to  constitute  a  riot 
need  not  be  actually  inflicted  upon  any  person. 
Threatening  with  pistols,  or  clubs,  or  even  by  words 
dr  gestures,  to  injure,  if  interfered  with  in  the  prose- 
cution of  the  unlawful  purpose,  or  any  other  demon- 
stration calculated  to  strike  terror  and  disturb  the 
public  peace,  is  a  sufficient  violence  to  constitute  the 
assembly  riotous.6  Indeed,  it  has  been  held  that  a 
trespass  to  property  in  the  presence  of  a  person  in 
actual    possession,   where   there   is   no   actual   force, 

1  4  Bl.  Com.  147 ;  Judge  King's  Charge,  4  Pa.  L.  J.  35,  an  admi- 
rable paper. 

2  Com.  v.  Hershberger,  Lewis  Cr.  L.  (Pa.)  72;  State  v.  Brazil, 
Eice  (S.  C),  258. 

3  State  v.  Straw,  33  Me.  554. 

*  Judge  King's  Charge,  4  Pa.  L.  J.  31 ;  State  v.  Snow,  18  Me.  846  ; 
Keg.  v.  Soley,  2  Salk.  594;  State  v.  Brooks,  1  Hill  (S.  C),  361; 
1  Hawk.  P  C  c.  16,  §  8.  But  see  State  v.  Stalecup,  1  Ired.  (N.  C) 
80. 

5  State  v.  Calder,  2  McCord  (S.  C),  402;  State  v.  Jackson, 
1  Speer  (S.  C),  13;  Bell  v.  Mallory,  61  111.  167;  Rex  v.  Hughes, 
4  C.  &  P.  37^ 


216  CRIMINAL  LAW. 

amounts  to  a  riot.1  Jhfijiiatuxbance^of  the  12.eace_b^ 
exciting  terror,  is  the  gist  of  the  offence.2  To  dis- 
turb another  in  the  enjoyment  of  his  lawful  right  is  a 
trespass,  which,  if  done  by  three  or  more  persons  un- 
lawfully combined,  with  noise  and  tumult,  is  a  riot ;  as 
the  disturbance  of  a  public  meeting,3  or  making  a  great 
noise  and  disturbance  at  a  theatre  for  the  purpose  of 
breaking  up  the  performance,  though  without  offering 
personal  violence  to  any  one,4  or  even  the  going  in  the 
night  upon  a  man's  premises  and  shaving  his  horse's 
tail,  if  it  be  done  with  so  much  noise  and  of  such  a 
character  as  to  arouse  the  proprietor  and  alarm  his 
family.5 

Violent,  threatening,  and  forcible  methods  of  en- 
forcing rights,  whether  public  or  private,  are  not 
lawful." 

V  ROBBERY.     \£r    \ 

§  205.  Robbery  is  larceny  from  the  person  or  per 
sonal  presence  by  Jorce  and  violence  and  putting  in 
learT^ 

What  constitutes  larceny,  what  may  be  stolen,  and 
what  constitutes  ownership  ;  that  the  taking  must  be 

i  State  v.  Fisher,  1  Dev.  (N.  C.)  504. 

2  State  v.  Renton,  15  N.  H.  169;  State  v.  Brooks,  1  Hill  (S.  C), 
362. 

8  State  v.  Townsend,  2  Harr.  (Del.)  543;  Com.  v.  Runnels,  10 
Mass.  520;  State  v.  Brazil,  Rice  (S.  C),  258;  Judge  King's  Charge, 
I  Pa.  L.  J.  38. 

4  Clifford  v.  Brandon,  2  Camp.  358;  State  v.  Brazil,  Rice  (S.  C), 
258. 

5  State  v.  Alexander,  7  Rich.  (S.  C)  5. 

6  Judge  King's  Charge,  4  Pa.  L.  J.  31. 

1  Com.  v.  Humphries,  7  Mass.  242 ;  State  v.  Gorham,  55  H.  H.  152  • 
Com.  v.  Holland,  1  Duvall  (Ky.),  182. 


ROBBERY.  217 

felonious,  against  the  will  or  without  the  consent  of  the 
owner,  and  with  intent  to  deprive  him  of  his  property, 
has  been  shown  under  that  title.1  We  are  now  to  con- 
sider the  additional  circumstances  which  elevate  lar- 
ceny into  robbery. 

§  206.  Force  and  Violence.  —  There  must  be  force 
and  violence  or  putting  in  fear,  and  this  force  and 
violence  or  putting  in  fear  must  be  the  means  by 
which  the  larceny  is  effected,  and  must  be  prior  to 
or  simultaneous  with  it.  fli  the  larceny  is  effected 
first,  and  the  fear  or  force  is  applied  afterwards 
for  the  purpose  of  enabling  the  thief  to  retain  pos- 
session of  his  booty,  or  for  any  other  purpose,  there 
is  no  robbery ?) 

While  mere  snatching  from  the  hand  or  picking 
from  the  pocket  of  a  person  will  be  but  larceny  from 
the  person,3  it  seems  to  be  the  law  that  if  the  article 
be  attached  to  the  person,  and  the  force  be  such  as  to 
break  the  attachment,  or  to  injure  the  person  from 
whom  the  property  is  taken,  as  where  a  steel  or  silk 
chain  attached  to  the  stolen  watch  and  around  the 
neck  was  broken,4  or  a  lady's  ear  from  which  a  ring 
was  snatched  was  torn,  the  offence  is  robbery,  and 
not  merely  larceny  from  the  person.6  So,  if  there  is  a 
struggle  for  the  possession  of  the  property  between  the 
thief  and  the  owner.6     So,  also,  if  force  be  applied  for 

i  Ante,  §  148. 

2  Harman's  Case,  1  Hale  P.  C.  634 ;  Rex  v.  Francis,  2  Str.  1016 ; 
Rex  v.  Gnosil,  1  C.  &  P.  304. 
Ante,  §  104. 
*  Rex  v.  Mason,  R.  &  R.  419 ;  State  v.  McCune,  5  R.  I.  00. 

5  Rex  v.  Lapier,  2  East  P.  C.  657. 

6  Davies  Case,  C.  B.  11  Anne,  1  Leach  C.  L.  290;  State  v.  Brod- 
erick,  59  Mo.  313.    But  see  State  v.  Johns,  5  Jones  (N.  C),  ICo. 


218  CRIMINAL  LAW. 

the  purpose  of  drawing  off  the  attention  of  the  person 
being  robbed.1 

§  207.  Putting  in  Pear.  —  Neither  actual  violence 
nor  the  fear  of  actual  violence  is  necessary  to  consti- 
tute the  offence.  The  putting  in  fear  is  using  a  cer- 
tain kind  of  force,  or  constructive  violence.2  Fear  of 
personal  injury  is  enough,  as  where  there  is  a.  threat  to 
shoot,  or  strike  with  a  dangerous  weapon,  or  in  some 
other  way  inflict  personal  injury,  even  though  it  be 
in  the  future.3  Time,  place,  and  circumstance,  as  by 
the  gathering  about  of  a  crowd  apparently  sympathizing 
with  the  thief,  and  showing  that  resistance  would 
be  vain,4  are  to  be  taken  into  account  in  determining 
whether  this  fear  exists.5  But  the  fear  induced  by  a 
threat  to  injure  one's  character,  or  to  deprive  him  of  a 
situation  whereby  he  earns  his  living,  is  also  enough.6 
It  is  said,  however,  that  the  fear  of  injury  to  char- 
acter, and  consequent  loss  of  means  of  livelihood, 
has  never  been  held  sufficient,  except  in  cases  where 
the  threat  was  to  charge  with  the  crime  of  sodomy.7 
So,  also,  it  has  been  said  that  fear,  induced  by  the 
threatened  destruction  of  a  child,  is  sufficient.8    And 

1  Mahoney  v.  People,  5T.&C.  329 ;  Anonymous,  1  Lewin,  300 ; 
Com.  v.  Snelling,  4  Binn.  (Pa.)  379. 

2  Donnally's  Case,  1  Leach,  196 ;  Long  v.  State,  12  Ga.  293. 
8  State  v.  Howerton,  58  Me.  581. 

4  Hughes's  Case,  1  Lew.  701. 

6  Long  v.  State,  12  Ga.  293. 

6  Rex  v.  Egerton,  R.  &  R.  375 ;  People  v.  McDaniels,  1  Parker 
C.  R.  (N.  Y.)  198 ;  Rex  v.  Gardiner,  1  C.  &  P.  479. 

1  Britt  v.  State,  7  Humph.  (Tenn.)  45;  Long  v.  State,  12  Ga.  293; 
Rex  v.  Wood,  2  East  P.  C.  732. 

8  Hatham,  B.,  in  Donnally's  Case,  1  Leach  C.  L.  196;  Eyre, 
C.  J.,  Reanes's  Case,  2  Leach  C.  L.  616. 


ROBBERY.  ^19 

there  seems  to  be  no  doubt  that  fear  induced  by  threats 
to  destroy  one's  property,  as  by  threats  of  a  mob  to 
pull  down  one's  house,  is  sufficient.1 

It  is  sometimes  said  that  there  must  exist  the  ele- 
ment of  fear  in  every  case,  in  order  to  constitute  the 
crime  of  robbery.2  But  there  may  be  cases  where 
there  seems  to  be  no  opportunity  for  the  action  of 
fear  ;  as  where  one  is,  without  warning,  knocked  sense- 
less by  a  single  blow,3  or  is  not  aware  of  the  purpose  and 
has  actually  no  fear,  that  being  only  a  diversion  of  the 
force  which  is  used,4  or  is  already,  when  assaulted,  in 
such  a  state  of  insensibility  as  to  be  incapable  of  fear  ; 5 
and  the  weight  of  authority,  both  ancient  and  modern, 
is  that  it  need  not  be  alleged  in  the  indictment  under 
the  common  law.6  And  those  courts  which  hold  that 
fear  is  necessary  make  the  force  which  would  ordi- 
narily excite  fear  conclusive  evidence  of  it.7 

The  cases  just  cited  also  show  that  "  against  the 
will,"  means  without  consent.8  Where  three  parties 
get  up  a  pretended  robbery  for  the  sake  of  obtain- 
ing a  reward,  the  taking  is  not  against  the  will  or 
without  consent.9    Nor   is   it  where  the   property  is 

i  Rex  v.  Astley,  2  East  P.  C.  729;  Rex  v.  Winkworth,  4  C.  &  P. 
892. 

2  1  Hawk.  P.  C.  c.  34. 

8  Foster  C.  L.  128  ;  McDaniel  v.  State,  8  S.  &  M.  (Miss.)  401. 

*  Com.  v.  Snelling,  4  Bin.  (Pa.)  379;  Mahoney  v.  People,  5  T. 
&  C.  329. 

5  Bloomer  v.  People,  1  Abb.  Ap.  Dec.  (N.  Y.)  146. 

6  Donnally's  Case,  1  Leach  C.  L.  229 ;  McDaniel's  Case,  Foster 
C  L.  128 ;  Com.  v.  Humphries,  7  Mass.  242 ;  State  v.  Broderick,  59 
Me.  318  ;  State  v.  Gorham,  55  N.  H.  152. 

»  Long  v.  State,  12  Ga.  293 ;  Reanes's  Case,  2  Leach  C.  L.  617. 
8  See  also  Larceny,  ante,  §§  148,  105. 
»  Rex  v.  McDaniel,  Foster  C.  L.  128. 


220  CRIMINAL  LAW. 

parted  with   for   the  purpose  of  making  a  case  for 
prosecution.1 

§  20 S.  The  taking  must  be  from  the  person  or  from 
the  personal  presence.  Thus,  if  a  man  assaults  an 
other,  rud,  having  put  him  in  fear,  drives  away  his 
cattle  from  the  pasture,2  in  his  presence,  or  picks  up 
a  purse  from  the  ground,  which  had  fallen,  or  been 
thrown  into  a  bush  during  the  scuffle,  the  taking  is 
complete.3  But  the  possession  of  the  robber,  if  com- 
plete, need  be  only  momentary  ;  and  if  it  be  imme- 
diately taken  away  from  him,  it  is  still  robbery.4 
Though  the  thief  obtain  possession  by  delivery  from 
the  owner,  as  where  he  points  a  pistol,  and  either 
directly  demands  money,6  or  demands  it  under  pre- 
tence of  asking  alms,6  even  after  having  resorted  to 
force  ineffectually,7  —  the  delivery  in  each  case  being 
induced  by  fear,  —  it  is  a  taking  within  the  meaning 
of  the  law,  and  he  is  in  each  case  guilty  of  robbery. 
And  so  may  a  forced  sale  be  robbery,  where  the  de- 
livery is  obtained  by  fear,8  if  the  full  value  be  not 
given  in  return  for  the  property  taken.9  And  where 
a  man  who  is  attempting  rape,  to  whom  the  woman 


1  Rex  v.  Fuller,  R.  &  R.  408. 

2  1  Hawk.  P.  C.  c.  34,  §  6. 

8  2  East  P.  C.  707 ;  United  States  v.  Jones,  3  Wash.  C.  Ct.  209 ; 
Owens  v.  State,  3  Cold.  (Tenn.)  350 ;  1  Hale  P.  C.  532 ;  Long  v.'State, 
12  Ga.  293. 

4  Peat's  Case,  1  Leach  C.  L.  228. 

e  Norden's  Case,  Foster  C.  L.  129. 

6  1  Hale  P.  C.  533. 

7  1  Hawk.  P.  C  c.  34,  §  8. 

8  Rex  v.  Simons,  2  East  P.  C.  c.  16,  §  128. 

•  Fisherman's  Case,  2  East  P.  C.  c.  10,  §  98;  4  Bl.  Com.  244. 


ROBBERY.     SEDUCTION.  221 

gives  money  to  induce  him  to  desist,  continues  his 
assault,  he  is  guilty  of  robbery.1 


n 


%°\\p 


SEDUCTION. 


§  209.  It  is  at  least  doubtful  whether  seduction  was 
an  indictable  offence  by  the  old  common  law.2  It 
seems,  however,  to  have  been  the  subject  of  statutory 
prohibition  as  long  ago  as  the  time  of  Philip  and  Mary,3 
whereby,  after  reciting  that  "  maidens  and  women " 
are,  "  by  flattery,  trifling  gifts,  and  fair  promises," 
induced  by  "  unthrifty  and  light  personages,"  and 
by  those  who  "  for  rewards  buy  and  sell  said  maidens 
and  children,"  it  is  made  unlawful  for  any  person  or 
persons  to  "  take  or  convey  away,  or  cause  to  be  taken 
or  conveyed  away,  any  maid  or  woman-child,  being 
under  the  age  of  sixteen  years,"  out  of  the  possession 
of  their  lawful  custodian.  There  seems  to  be  no  rea- 
son to  doubt  that  this  statute  became  a  part  of  the 
common  law  of  the  colonies,4  and  it  seems  to  have 
been  adopted  by  statute,  and  acted  upon  in  South 
Carolina  with  certain  modifications,  —  the  limitation 
to  heiresses,  for  instance,  being  regarded  as  not  ap- 
plicable to  the  condition  of  society  in  that  jurisdiction. 
Indeed,  it  was  held  that  such  a  limitation  was  not  in 
the  act  itself  fairly  interpreted.5     The  distinction  be- 

i  Rex  v.  Blackham,  2  East  P.  C.  117. 

-  Rex  v.  Moore,  2  Mod.  128 ;  Rex  v.  Marriot,  4  Mod.  144 ;  1  East 
P.  C.  448. 

s  4  &  6  Ph.  &  M.  c.  8,  §§  1,  2. 

4  Com.  v.  Knowlton,  2  Mas9.  534. 

»  State  v.  Findley,  2  Bay  (S.  C),  418;  O'Bannon's  Case,  1  Bail. 
144.  See  also  State  v.  Tidwell,  6  Strobh.  (S.  C.)  1,  which,  however, 
is  a  case  for  abduction  under  the  third  and  fourth  sections  of  the 
statute. 


222  CRIMINAL  LAW. 

tween  abduction  and  seduction  seems  to  be  that  the 
former  is  presumed  to  be  by  force,  or  its  equivalent, 
for  the  purposes  of  marriage  or  gain ;  while  the  latter  is 
presumed  to  be  without  force,  and  by  enticement,  for 
the  purpose  of  illicit  intercourse.1  The  distinction  is 
by  no"  means  clearly  made,  and  the  decisions  in  indict- 
ments for  abduction  and  seduction  will  be  found  inter- 
changeably useful  to  be  consulted.  In  Connecticut,  the 
statute  punishes  "  whoever  seduces  a  female ; "  and 
seduction  is  held  ex  vi  termini  to  imply  sexual  inter- 
course, and  is  defined  to  be  "  an  enticement "  of  the 
female  "  to  surrender  her  chastity  by  means  of  some 
art,  influence,  promise,  or  deception,  calculated  to  ef- 
fect that  object ; "  and  the  seduction  is  proved,  though 
it  appear  that  it  followed  a  promise  of  marriage  made 
in  good  faith.2  Here,  too,  as  in  the  cases  cited  illus- 
trative of  the  statutes  against  abduction,  by  "  previous 
chaste  character,"  is  meant  actual  personal  virtue,3 
which  is  presumed  to  exist,  unless  it  be  shown  that  the 
woman  has  had  illicit  intercourse  with  the  defendant 
or  another  prior  to  the  seduction,4  and  may  still  exist 
if  it  be  shown  that,  though  at  some  former  time  she 
may  have  yielded  to  the  defendant,  she  had  reformed, 
and  was  a  chaste  woman  at  the  time  of  the  seduction.5 
And  it  seems  that,  if  the  alleged  seducer  be  a  married 

1  State  v.  Crawford,  34  Iowa,  40. 

2  State  v.  Bearce,  27  Conn.  319 ;  Dinkey  v.  Com.,  17  Pa.  St.  146 ; 
Croghan  v.  State,  22  Wis.  444. 

3  People  v.  Kenyon,  26  N.  Y.  203;  Crozier  v.  People,  1  Parker  C.  C. 
457. 

*  Wood  v.  State,  48  Ga.  192 ;  State  v.  Higdon,  32  Iowa,  262 ;  Peo- 
ple v.  Brewer,  27  Mich.  134 ;  People  v.  Clark,  38  Mich.  112. 

5  State  v.  Timmens,  4  Minn.  325 ;  State  v.  Cavinara,  18  Iowa,  372 
But  see  Cook  v.  People,  2  N.  Y.  Sup.  Ct.  404. 


SEDUCTION.     SODOMY.  223 

man,  and  known  to  be  such  by  the  female  said  to  have 
been  seduced,  and  the  means  of  seduction  are  alleged 
to  be  a  promise  of  marriage,  this  is  not  such  a  false 
and  fraudulent  act  as  could  lead  to  the  betrayal  of  the 
confidence  of  any  virtuous  woman,  and  has  not  there- 
fore the  element  of  fraud  which  is  necessary  to  consti- 
tute the  crime  of  seduction.1 

SODOMY. 

§  210.  Sodomy,  otherwise  called  bestiality,  buggery, 
and  the  crime  against  nature,  is  the  unnatural  carnal 
copulation  of  one  human  being  with  another,  or  with  a 
beast.2  It  was  ancientlv  a  felony  at  common  law,  pun 
ishable  by  burning  or  burying  alive,  and  subsequently 
by  hanging  ; 3  and  till  recently,  in  some  of  the  States, 
has  been  a  capital  offence.  To  constitute  the  offence 
between  human  beings,  the  act  must  be  per  a/mm.4 
A  fowl  is  not  a  beast.6 

1  Wood  v.  State,  ubi  supra;  People  v.  Alger,  1  Parker  C.  C.  (N:Y.) 
337.  See  also  Boyce  v.  People,  55  N.  Y.  044,  and  Abduction,  ante, 
S  41.  The  case  of  Wood  v.  State,  48  Ga.  l'J2,  is  sometimes  cited  as 
holding  the  doctrine  that  it  is  not  necessary,  in  order  to  show  that  a 
woman  is  not  a  virtuous  woman,  to  prove  that  she  has  been  guilty  of 
previous  illicit  intercourse,  but  it  is  sufficient  to  show  that  her  mind 
has  become  deluded  by  unchaste  and  lustful  desires.  But  though  this 
was  the  view  of  the  judge  who  gave  the  opinion,  it  was  distinctly 
disavowed  by  Warren,  C.  J.,  and  Trippe,  J.,  —  a  majority  of  the  court, 
—  who  held  to  the  contrary. 

-  1  Hawk.  P.  C.  bk.  1,  c.  4. 

8  Ibid. 

*  Rex  v.  Jacobs,  R.  &  R.  339. 

6  Rex  v.  Mulreaty,  MSS.,  Bailey,  J.,  cited  in  1  Russ.  Crimes,  bk.  3, 
c.  7.  Whether  penetration  is  sufficient  to  constitute  the  crime  with- 
out emission,  see  Rape.  But  few  cases  occur  in  the  reports.  Com.  p. 
Thomas,  1  Va.  Cas.  307;  Lambertsou  v.  People,  5  Parker  (N.  Y.)  C  R 


224  CRIMINAL  LAW. 

\J)    V  TREASON.  \£>    Vi 

§  211.  At  common  law  there  are  two  kinds  of  trea- 
son :  first,  disloyalty  to  the  king,  or  a  violation  of  the 
allegiance  due  him,  which  was  of  the  highest  obligation, 
and  hence  called  high  treason  ;  and,  second,  a  viola- 
tion of  the  allegiance  or  duty  owed  by  an  inferior  to 
a  superior,  as  of  a  wife  to  the  husband,  a  servant  to  his 
master,  or  an  ecclesiastic  to  his  lord  or  ordinary,  — » 
either  of  which  inferiors,  if  they  should  kill  their 
superior,  were  held  guilty  of  petit  treason.1  There 
is,  however,  now,  neither  in  England  nor  in  this 
country,  any  such  classification  of  treasons, — petit 
treasons  being  everywhere  punished  as  homicides. 

§  212.  Definition.  —  By  the  ancient  common  law,  the 
crime  of  treason  was  not  clearly  defined,  whence  arose, 
according  to  the  arbitrary  discretion  of  the  judges  and 
the  temper  of  the  times,  a  great  number  of  modes  by 
which  it  was  held  treason  might  be  committed,  not  im- 
portant to  be  here  detailed.  The  inconvenience  of  such 
uncertainty  as  to  the  law  led  to  the  enactment  of 
the  Stat.  25  Edw.  III.  c.  2,  which,  confirmed  and 
made  perpetual  by  the  57th  Geo.  III.  c.  6,  defines 
the  law  of  England  upon  the  subject,  enumerating  a 
large  number  of  specific  acts  which  may  constitute 
the  offence.  Only  two  of  these,  however,  are  treason- 
able in  this  country.2 

200 ;  Com.  v.  Snow,  111  Mass.  415 ;  Fennell  v.  State,  32  Texas,  378, 
where  it  is  held  by  a  divided  opinion  not  to  be  an  offence  on  the 
ground  that  it  is  not  defined  by  statute,  no  undefined  offence  being 
punishable  there.     See  also  Davis  v.  State,  3  H.  &  J.  (N.  Y.)  154. 

1  4  Bl.  Com.  75;  Respublica  v.  Chapman,  1  Dall.  (Pa.)  56. 

2  Stephen's  Dig.  Cr.  Law,  art.  51  et  seq. 


. 


TREASON.  225 

By  the  Constitution  of  the  United  States,1  treason  is 
declared  to  consist  only  "  in  levying  war  against  them. 
orjn  ndhftriug  j^^h^ir_encjiiies>_giving  them  aid-anji 
comfort ; "  and  this  must  be  by  a  person  owing  alle- 
giance to  the  United  States.2  Substantially  the  same 
definition  is  adopted  by  the  several  States,  some  of 
them,  however,  setting  out,  either  in  their  constitu- 
tions or  the  statutes,  at  some  length,  the  particular 
methods  of  adhesion  and  of  giving  aid  and  comfort 
which  shall  constitute  treason. 

§  213.  "War  may  be  levied  not  only  by  taking  arms 
against  the  government,  but  under  pretence  of  reform- 
ing religion  or  the  laws,  or  of  removing  evil  counsellors 
or  other  grievances,  whether  real  or  pretended.  To  re- 
sist the  government  forces  by  defending  a  fort  against 
them  is  levying  war,  and  so  is  an  insurrection  with  an 
avowed  design  to  put  down  all  enclosures,  all  brothels, 
or  the  like  ;  the  universality  of  the  design  making  it  a 
rebellion  against  the  State  and  a  usurpation  of  the 
power  of  government.  But  a  tumult,  with  a  view  to 
pull  down  a  particular  house  or  lay  open  a  particular 
enclosure,  amounts,  at  best,  to  riot,  there  being  no 
defiance  of  public  government.3  An  insurrection  to 
prevent  the  execution  of  an  act  of  Congress  alto- 
gether, by  force  and  intimidation,  is  levying  war;4  but 
the  forcible  resistance  of  the  execution  of  such  an  act 
for  a  present  purpose,  and  not  for  a  purpose  of  a  public 

i  Art.  3,  §  3. 

2  A9  to  what  constitutes  allegiance,  see  2  Kent  Com.  (12th  ed  ) 
p.  39  et  seq. 

8  4  Bl.  Com.  81,  82  ;  ante,  Riot. 
*  United  States  v.  Mitchell,  2  Dall.  (Pa.)  348. 
15 


226  CRIMINAL  LAW. 

and  general  character,  does  not  amount  to  treason  ; ] 
nor  does  the  mere  enlistment  of  men  into  service.2 
There  must  be,  to  constitute  an  actual  levy  of  war, 
an  assemblage  of  persons  met  for  a  treasonable  pur- 
pose, and  some  overt  act  done,  or  some  attempt  made 
by  them,  with  force,  to  execute,  or  towards  executing, 
that  purpose.  There  must  be  a  present  intention  to 
proceed  to  the  execution  of  the  treasonable  purpose 
by  force.  The  assembly  must  be  in  a  condition  to 
use  force,  if  necessary,  to  further,  or  to  aid,  or  to  ac- 
complish their  treasonable  design.  If  the  assembly 
is  arrayed  in  a  military  manner  for  the  express  pur- 
pose of  overawing  or  intimidating  the  public,  and  to 
attempt  to  carry  into  effect  their  treasonable  designs, 
that  will,  of  itself,  amount  to  a  levy  of  war,  although 
no  actual  blow  has  been  struck  or  engagement  has 
taken  place.3  So,  aiding  a  rebellion,  by  fitting  out 
a  vessel  to  cruise  against  the  government  rebelled 
against  in  behalf  of  the  insurgents,  is  levying  war, 
whether  the  vessel  sails  or  not.4  So  is  a  desertion 
to,  or  voluntary  enlistment  in,  the  service  of  the 
enemy.5 

In  England,  "  levying  war  "  is  held  to  mean :  1st. 
Attacking,  in  the  manner  usual  in  war,  the  Queen 
herself  or  her  military  forces,  acting  as  such  by  her 
orders  in  the  execution  of  their  duty  ;  2d.  Attempting 

1  United  States  v.  Hoxie,  1  Paine  C.  Ct.  265;  United  States  v 
Han  way,  2  Wall.  Jr.  C.  Ct.  139. 

2  Ex  parte  Bollman,  4  Cranch  (U  S.),  75. 

8  Burr's  Trial,  401.     See  also  14  Law  Reporter,  p.  413. 
*  United  States  v.  Greathouse,  2  Abb.  C.  Ct.  364. 
6  United  States  v.  Hodges,  2  Wheeler's  Cr.  Cas.  477 ;  Roberts'  Case, 
1  Dall.  (Pa.)  39  ;  McCarty's  Case,  2  Dall.  (Pa.)  80. 


TREASON.  227 

by  an  insurrection  of  whatever  nature,  by  force  or 
constraint,  to  compel  the  Queen  to  change  her  mea- 
sures or  counsels  or  to  intimidate  or  overawe  both 
Houses  or  either  House  of  Parliament ;  and,  3d.  At- 
tempting, by  an  insurrection  of  whatever  kind,  to 
effect  any  general  public  object.  But  an  insurrec- 
tion, even  conducted  in  a  warlike  manner,  against  a 
private  person,  for  the  purpose  of  inflicting  upon  him 
a  private  wrong,  is  not  levying  war,  in  a  treasonable 
sense. 

Adhering  to  the  Queen's  enemies  is  held  to  be  ac- 
tive assistance  within  or  without  the  realm  to  a  public 
enemy  at  war  with  the  Queen.  Rebels  may  be  public 
enemies,  within  the  meaning  of  the  rule.1 

§  214.  Misprision  of  treason  is  the  concealment  of,  by 
one  having  knowledge,  or  the  failure  to  make  known 
to  the  government,  aj}yjkrcasau.committeiLia:(in  some 
of  the  States)  contemplated.2 

§  215.  Evidence. — The  rule  is  incorporated  into  the 
Constitution  of  the  United  States  and  into  those  of 
most  of  the  States,  that  treason  can  only  be  proved  by 
the  evidence  of  two  witnesses  *"  the  sampi  p^r*  act . 
by_confessiun  in  open  court.  .  Unless  the  overt  act  is 
so  proved,  all  other  evidence  is  irrelevant.3  But  an 
overt  act  being  proved  by  two  witnesses,  all  other  re- 
quisite facts  may  be  proved  by  the  testimony  of  a 
single  witness.4 

The  common-law  rule  was  that  there  must  be  tw< 


1  Stephen's  Dig.  Cr.  Law,  arts.  53  and  54. 

2  See  the  constitutions  and  statutes  of  the  several  States. 
8  United  States  v.  Burr,  4  Cranch,  403. 

*  United  States  v.  Mitchell,  2  Dall.  (Pa.)  348. 


228  CRIMINAL  LAW. 

witnesses  ;  but  it  was  held  sufficient  if  one  testified  to 
one  overt  act,  and  another  to  another.  And  this  may 
be  the  rule  now  in  those  States  whose  constitutions  or 
statutes  do  not  contain  the  explicit  language  of  the 
Constitution  of  the  United  States.1  The  ordinary  rules 
of  evidence  generally  prevail .  in  the  proof  of  mispri- 
sions.2 

A  confession  not  in  court  may  be  proved  by  the 
testimony  of  one  witness,  as  corroborating  other  testi- 
mony in  the  case  ;  but  in  those  States  prohibiting  con- 
viction unless  upon  confession  in  open  court,  it  cannot 
be  made  the  substantive  ground  of  conviction.3 

i  Stat.  7  W.  III.  c.  3,  §  2 ;  R.  S.  New  York,  vol.  ii.  p.  890,  §  15 ; 
3  Greenl.  Ev.  §  246  and  notes. 
2  3  Greenl.  Ev.  §  247. 
s  Roberts'  Case,  2  DaU.  (Pa.)  39;  McCarty'a  Case,  2  Dall.  (Pa.)  86 


INDEX. 


[THE   RJtFBRENCES  ARE  TO  THE   SECTION!.  J 


Abduction  by  the  common  law,  what,  44. 

distinguished  from  kidnapping,  44. 
now  mostly  a  statutory  offence,  44. 
"  for  purpose  of  prostitution,"  what,  44. 
forcible,  may  be  by  fraud  or  threats,  44. 
distinguished  from  seduction,  209. 
Abortion  not  an  offence  at  common  law,  45. 
consent  of  woman  no  excuse,  45. 
both  parties  to,  guilty,  45. 
attempt  to  commit,  indictable,  45. 
Accessory,  who  is,  30-35. 

none  in  manslaughter  or  treason,  30,  32. 
Accomplice,  evidence  of,  30. 
who  is,  36,  70. 
who  is  not,  36,  45. 
Agent  in  embezzlement,  who  is,  98,  99. 
Adultery  defined,  46. 

no  offence  at  common  law,  46. 
not  everywhere  a  crime,  30. 
original  idea  of,  46. 
"  open  and  notorious,"  what,  46. 
"  living  in,"  what,  46. 
Affirmation  defined,  184. 
Affray  defined,  47. 

two  persons  requisite  in  an,  47. 
Apostasy  not  an  offence  in  this  country,  48. 
Arrest,  when  legal  and  when  not,  146,  201. 
Arson  defined,  49. 

"  dwelling-house,"  meaning  of,  in,  49. 
ownership  in,  what,  49. 
occupation  in,  what,  52. 
motive  and  intent  in,  53. 
"  burning  "  defined,  64. 
Assault  defined,  65. 

force  in,  must  be  unlawful,  56. 


230  INDEX. 

Assault,  fraud  vitiates  consent  in,  56. 

consent  to,  how  far  an  excuse,  56,  61. 

degree  of  force  necessary,  57. 

application  of  force,  mode  of,  in,  57,  58. 

imprisonment  not  necessarily  an,  68. 

fear  supposes  force  in,  59. 

threat  of  personal  injury  in,  59. 

threat,  but  no  intent  to  injure  in,  60. 

self-defence  against,  how  far  permissible,  62. 
'    in  defence  of  property,  when,  63. 

accidental,  64. 
Assembly,  unlawful,  what,  203. 
Attempt,  criminal,  defined,  28,  29. 
offer  to  bribe,  an,  69. 
offer  to  accept  a  bribe,  an,  69. 
Autrefois  acquit  and  convict,  plea  of,  40. 

Barratry  defined,  65. 

fraud,  what  amounts  to,  in,  65. 
Barretry  defined,  66. 
is  a  habit,  66. 

by  whom  it  may  be  committed,  66. 

common  law  of,  not  generally  adopted  in  this  country,  66. 
Battery  defined,  55. 
Benefit  of  clergy,  what,  42. 
Bestiality  defined,  70. 
Bigamy  defined,  67. 

gist  of  the  offence,  67. 
effect  of  divorce  in,  67. 
may  be  unintentional,  67. 
Blasphemy  defined,  68. 

instances  illustrative,  68. 
a  form  of  nuisance,  182. 
Brawler,  common,  66,  182. 
Bribery  at  common  law  defined,  69. 

an  offer  to  bribe,  or  accept  a  bribe,  an  attempt,  29,  69. 
modern  tendency  to  extend  the  scope  of,  illustrations,  69. 
payment  of  expenses,  how  far,  69. 
Buggery  defined,  70. 

not  an  offence  in  some  States,  70. 
not  regarded  as  criminal  by  some  Christian  nations,  70. 
penetration  only  necessary  to,  70. 
must  be  per  anum,  70. 
Burden  of  proof  in  criminal  cases,  37. 


INDEX.  --'I 

Burglary  defined,  71. 

breaking,  actual,  in,  52. 

breaking,  constructive,  in,  73. 

breaking  out,  76. 

entry  in,  what,  77. 

time,  effect  of,  in,  80. 
"  Burning  "  defined,  54. 

Carelessness,  criminal,  140,  141. 
Challenge  to  fight  a  duel,  indictable,  29. 

inviting  a,  indictable,  29. 
Champerty  defined,  66. 

modern  tendency  to  restrict  the  common-law  definition 
of,  66. 
"  Character  unchaste,"  "  good  repute  for  chastity,"  distinguished,  44, 

209. 
Cheating  defined,  82. 

mere  lying  insufficient  in,  82. 
must  be  token  or  device,  83. 
swindling,  form  of,  84. 
Christianity  part  of  the  common  law,  43,  68. 
Clergy,  benefit  of,  what,  42. 
Clerk,  in  embezzlement,  who  is,  98. 
Coercion  excuses  crime,  when,  14,  30. 
Cohabitation,  lascivious,  what,  169. 
Common  scolds,  drunkards,  &c,  66,  182. 
Consent  obtained  by  fraud  or  fear  nugatory,  66,  61. 
and  submission  distinguished,  56,  61,  195. 
in  abortion  no  excuse,  45. 
in  buggery  no  excuse,  70. 
in  burglary  no  excuse,  74. 
Conspiracy  defined,  85. 

an  attempt,  85. 
what  amounts  to,  86. 
agreement  the  gist  of  the  offence,  87. 
if  felony  be  committed,  what,  87. 
all  participators  in,  equally  guilty,  89. 
effect  of  local  laws  in,  90. 
Construction  of  criminal  and  penal  law,  strict,  39. 
Contempt  of  court  punishable  by  indictment,  and  summarily,  by  tho 
court,  91. 
what  acts  constitute,  92. 
proceedings  upon,  98. 
Corporations,  indictable,  when,  15. 


232  INDEX. 

Counterfeiting  defined,  94. 

and  forgery  distinguished,  94. 
how  punishable,  94. 
Crime  defined,  1. 

by  whom,  defined,  2. 

how  proseeuted  and  punished,  2. 

none  at  common  law,  under  United  States  government,  2. 

what  not  indictable  or  punishable,  3. 

moral  obliquity  not  essential  to  constitute,  4. 

in  one  jurisdiction  not  necessarily  crime  in  another,  4. 

ignorance  of  fact,  when  no  excuse  for,  5,  10. 

when  under  indictment  for,  conviction  may  be  had  of  an- 
other, 8. 

when  several  commit,  all  principals,  30.  t 

against  two  sovereignties,  40,  41. 
Crimes,  classification  of,  25-29. 
Criminal,  who  may  become  a,  12. 
Criminal  capacity,  12-24. 
Criminal  case,  test  of,  37. 

Criminal  intent,  when  not  necessary  to  constitute  crime,  6. 
Criminal  law  construed  strictly  in  favor  of  accused,  39. 
Criminal  responsibility,  when  it  attaches,  12-24. 
Criminals,  classification,  30-37. 
Cursing,  habitual,  82. 
Curtilage,  meaning  of,  50. 
Custody  and  possession  distinguished,  97. 

Delirium  tremens,  its  effect  on  criminal  responsibility,  23. 

Detainer,  forcible,  what,  118. 

Device  in  cheating,  what,  83. 

Doubt,  reasonable,  when  prisoner  to  have  benefit,  22,  37,  39. 

Drunkard,  common,  182. 

Drunkenness  in  general  no  excuse  for  crime,  21. 

how  malice  and  intent  affected  by,  22-24. 

involuntary,  releases  from  responsibility,  24. 
"  Dwelling-house,"  in  arson,  meaning  of,  50-52. 
"malicious  burning"  of,  51. 
meaning  of,  in  burglary,  75. 

Eavesdropping  a  form  of  nuisance,  95,  182. 
Embezzlement  not  an  offence  at  common  law,  96. 

formerly  only  a  breach  of  trust,  4. 

distinguished  from  larceny,  how,  96,  97. 

breach  of  trust,  96,  100. 


INDEX.  233 

Embezzlement,  clerk,  servant,  agent,  officer,  meaning  of,  in,  98. 
employment,  what,  in,  100. 
what  may  be  embezzled,  101. 
intent  to  defraud  essential,  102. 
Embracery  defined,  103. 

Engrossing,  forestalling,  and  regrating,  what,  104. 
Entry,  forcible,  what,  118. 
Escape  defined,  201. 
Evidence  in  criminal  cases,  37,  38. 

in  perjury,  189. 

in  treason,  215. 

of  insanity,  burden  of  proof,  20,  37. 

of  an  accomplice,  36. 
Ex  post  facto  law,  what,  39  a. 
Extortion  defined,  105. 

must  be  intentional,  105. 

False  imprisonment,  what,  106. 
False  pretences,  what,  107. 

cheating  by  words  or  acts,  107. 
essential  elements  of,  107. 
opinions,  how  far  included  in,  108. 
what  may  be  subject-matters  of,  109. 
intent  to  defraud  necessary,  110. 
and  actual  fraud,  111. 

must  be  made  before  obtaining  goods,  108,  111. 
where  both  parties  cheat,  how,  112. 
no  deceit,  no  cheating,  11-3. 
imprudence  in  cheated  party  immaterial,  113. 
whether,  must  be  sole  means  of  deceiving,  114. 
property  subject-matter  of,  115. 
and  larceny  distinguished,  110. 
Fear,  when  it  amounts  to  force,  44,  56,  50,  60,  61,  100,  147,  194,  207. 

putting  in,  what,  207. 
Felony,  what,  26. 

right  and  duty  to  prevent,  146. 
"  Fighting,"  meaning  of,  47. 

and  self-defence  distinguished,  47. 
Force,  when  lawful,  56. 

when  fraud  or  fear  supplies  the  place  of,  44,  56-01,  106,  147 

149,  104,  207,  218. 
when  not,  209. 
and  violence  in  rape,  194. 
Forcible  entry  and  detainer  defined,  117. 


234  INDEX. 

Forcible  entry,  degree  of  force  in,  118. 

what  may  be  entered  or  detained,  119. 
Forcible  trespass,  to  personal  property,  120. 
Forestalling,  what,  104. 
Forgery  defined,  121. 

must  be  of  a  material  matter,  122. 
may  be  of  fictitious  name,  123. 

alterations  by  addition  or  erasure  construed,  123,  124,  126. 
signing  one's  own  name  may  be,  123. 
must  be  intent  to  defraud,  125. 
lack  of  similitude  in,  immaterial,  125. 
Former  acquittal  and  conviction,  plea  of,  40. 
Fornication  denned,  126. 

offence  of  ecclesiastical  origin,  126. 

pure  and  simple,  not  an  offence  at  common  law  in  this 
country,  126. 
Fraud,  when  it  is  equivalent  to  force,  44,  56,  61,  100,  147,  149. 
when  not,  194. 

when  it  excuses  crime,  14,  24,  30. 
what  amounts  to,  in  barratry,  65. 

"  Goods,"  personal,  subjects  of  larceny,  160. 

Homicide  defined,  127. 

may  be  lawful,  when,  127. 

justifiable  and  excusable,  when,  127. 

suicide,  form  of,  128. 

must  be  of  human  being,  born  and  alive,  128. 

death  must  be  within  a  year  and  a  day,  128. 

murder,  highest  degree  of,  129. 

malice  in,  express  and  implied,  130. 

malice  aforethought  and  presumptive,  131,  132. 

manslaughter,  degree  of,  134. 

accidental,  145. 

in  prevention  of  felony,  146. 

See  Murder  and  Manslaughter. 
House,  every  man's,  his  castle,  meaning  of,  63. 
Husband,  accessory  to  wife,  and  wife  to  husband,  when,  34 

coercion  of  wife  by,  14. 

Idiots  irresponsible  for  acts,  when,  16. 

Ignorance  of  fact,  when  no  excuse  for  crime,  5,  10. 

of  law  no  excuse  for  crime,  5,  10. 
Imprisonment,  what,  202. 


INDEX. 

Imprisonment,  false,  106. 

Infants,  when  criminal  aud  when  not,  13. 

Insanity  defined,  16. 

emotional,  what,  18. 
moral,  19. 
proof  of,  20. 
Intent,  criminal,  how  far  necessary  to  constitute  crime,  5. 

distinguished  from  malice,  6. 

distinguished  from  attempt,  29. 

presumed,  from  unlawfulness  of  act,  when,  7. 

when  it  must  be  proved,  7,  8,  45. 

how  affected  by  drunkenness,  22,  81. 

to  defraud,  120,  125. 
Interpretation,  rules  of,  39. 
Irresistible  impulse,  17. 

Jeopardy,  no  one  to  be  put  twice  in,  meaning  and  scope  of  rule,  40. 
"  Judicial  proceeding,"  what,  186. 

Jurisdiction,  criminal,  its  extent  and  limitations,  31,  41,  107,  198. 
none  by  consent  of  parties,  41. 

Kidnapping  and  abduction  distinguished,  44. 

defined,  147. 
Knowledge  of  the  law,  when  presumed,  10. 
when  not,  11. 

carnal,  what,  193. 

Larceny  distinguished  from  embezzlement,  97,  153. 
false  pretences,  116. 
defined,  148. 
petit  and  grand,  148. 

simple,  compound,  and  aggravated,  148,  164 
taking  and  carrying  away  in,  149. 
taking,  degree  of  force  necessary  in,  149. 
taking  by  finding  in,  160. 
taking  of  property  left  by  mistake,  151. 
taking  by  servant  or  bailee,  152,  153. 
temporary  delivery  upon  condition  in,  154. 
taking  by  owner  in,  155. 
taking,  what  is  felonious,  156. 
and  malicious  mischief  distinguished,  157. 
taking  lucri  causa,  use  under  claim  of  right,  157-159. 
concealment  as  evidence  of  intent  in,  169. 
what  may  be  subject-matter  of,  IflO. 


236  INDEX. 

Larceny,  wild  animals  domesticated,  161. 

value  of  property  as  an  element  in,  162. 
ownership  in,  163. 
from  person,  from  a  vessel,  164. 
from  a  building,  164-166. 
place  and  jurisdiction  of,  41,  167,  198. 
different  simultaneous  taking,  168. 
trespass  as  an  element  of,  154. 
Lasciviousness,  what,  169. 

behavior  and  carriage,  what,  169. 
cohabitation,  what,  169. 
Law,  ex  post  facto,  what,  3!)  a. 

penal  and  criminal,  strictly  construed,  39. 
Libel  defined,  170. 
malice  in,  171. 
publication  of,  what,  172. 
privileged  communication  in,  173. 
Lunatics  irresponsible,  when,  16. 

Maintenance  defined,  175. 

"  officious  intermeddling,"  what,  176. 
See  Barretry. 
Mala  prohibita  and  mala  in  se  distinguished,  5. 
Malice  defined,  9,  53,  130-132,  171,  178. 
how  affected  by  intoxication,  22. 
aforethought,  express,  implied,  presumptive,  130-132. 
express,  inferred  from  circumstances,  179. 
Malicious  mischief  distinguished  from  larceny,  157. 
defined,  177. 
malice  in,  178. 
Manslaughter  defined,  134. 

voluntary  and  involuntary,  134. 
mitigating  circumstances  in,  135. 
provocation  in,  136,  137. 

death  in,  must  be  direct  result  of  unlawful  act,  138. 
unlawfulness  in,  139. 
negligence  and  carelessness  in,  140,  141. 
self-defence,  how  far  an  excuse,  142. 
Married  woman,  when  excused  for  crime,  14,  39. 
Mayhem  at  common  law  defined,  180. 

now  generally  defined  by  statutes,  180. 
generally  a  misdemeanor,  180. 
Misdemeanor,  what,  27. 
Mistake,  when  it  relieves  from  responsibility,  24,  105. 


INDEX.  237 

Motive  distinguished  from  intent,  6,  53. 
Murder  defined,  129. 

degree  of,  138. 

malice  in,  130-132. 

See  Homicide. 

Negligence,  evidence  of  fraud,  when,  65. 

criminal,  140,  141. 
Non-conformity  no  offence  in  this  country,  48. 
Nuisance  defined,  181. 

illustrations  of,  181. 
Nuisances,  common  scolds,  drunkards,  barrators,  profane  persons, 
keepers  of  tippling-shops  ami  houses  of  ill-fame,   pro- 
moters  of    lotteries,    disseminators   of    disease   or  of 
offensive  odors,  and  persons  otherwise  annoying   the 
public,  indictable  as,  1^2. 
no  prescription  for  right  to  maintain,  183. 
public  benefit  no  excuse,  183. 
no  act  authorized  by  law  a,  182. 
hindrance  to  a  public  right  a,  182. 
and  interference  with  enjoyment  of  a,  182. 
an  established  lawful  business  may  become  a,  183. 
time  and  place  sometimes  decisive  of,  182. 

Oath  defined,  184. 

form  of  administration  of,  not  essential,  184. 

to  be  valid,  must  be  required  by  law,  185. 

to  be  valid,  must  be  wilful  and  false,  187. 

to  be  valid,  must  be  on  a  material  point,  187,  188. 

whether  materiality  of,  a  question  of  law  or  fact,  188. 

whether  voluntary  or  compulsory,  immaterial,  when,  187. 

according  to  knowledge  and  belief,  may  be  perjury,  187. 

so  if  he  have  no  knowledge  or  belief,  187. 
Oaths  of  officer  not  within  the  law  against  perjury,  187. 
Occupation  of  dwelling-house,  what,  52,  78. 
Officer,  who  is,  in  embezzlement,  98,  99. 
Ownership  in  arson,  meaning  of,  51. 

in  burglary,  meaning  of,  79. 
in  larceny,  meaning  of,  163. 

Penal  law  strictly  construed,  39. 
Perjury  defined,  184. 

evidence  in,  amount  required,  189. 

oath  of  office  not  within  the  law  of,  187. 


238  INDEX. 

-Perjury,  subornation  of,  defined,  190. 

subornation  of,  evidence  in,  190. 
Piracy  defined,  191. 

robbery  on  board  a  vessel,  wlien  not,  191. 

how  triable  and  punishable,  191. 

jurisdiction  of,  191. 
Place,  public,  what,  47. 
Polygamy.     See  Bigamy. 
Possession  and  custody  distinguished,  97,  153. 

Possession,  recent,  of  stolen  goods  proves  larceny  rather  than  receiv- 
ing, 198. 
Preparation,  intent  and  attempt  distinguished  from,  29. 
Principals  and  accessories,  who  are,  30,  31. 
Prison,  what,  202. 
Prison  breach,  defined,  202. 
Privileged  communications,  what,  173. 
Profanity,  form  of  nuisance,  182. 
Proof,  burden  of,  in  criminal  cases,  37. 
Property,  how  far  it  may  be  defended  by  force,  63,  142. 
"  Prostitution  "  and  "  illicit  intercourse  "  distinguished,  44. 
Public  place,  what,  47. 
Publication  of  libel,  what,  172. 
Punishment  twice  for  same  offence,  when,  40,  41. 

Railers,  common,  G6,  182. 
Rape  defined,  192. 

carnal  knowledge  in,  what,  193. 
force  and  violence  in,  194. 
infant  male  incapable,  when,  13. 
Receiving  stolen  goods,  substantive  offence,  196. 
what  constitutes,  196,  197. 
jurisdiction  in  cases  of,  198. 
Regrating,  what,  104. 
Rent  defined,  203. 

Repeal  of  statute  pending  trial,  effect  of,  39  a. 
Retreat,  necessity  of,  before  killing,  when,  62,  63,  142. 
Riot  defined,  146,  203. 

violence  necessary  to  constitute,  204. 
disturbance  of  public  peace  gist  of  offence,  204. 
i)bl  cry  on  board  a  vessel  not  piracy,  when,  191. 
Robbery  defined,  205. 

force  and  violence  necessary  in,  206. 
putting  in  fear  in,  what,  207. 
taking  of  property  in,  what,  208. 


INDEX 

Scolds,  common,  06,  182. 

Seduction,  whether  indictable  at  common  law,  209. 
what  constituti  • 

and  abduction  distinguished,  200. 
and  prostitution  distinguished,  44. 
Self-defence,  its  limitations,  62,  140,  142,  143,  144. 
Sentence  after  plea  and  demurrer,  when,  36. 
Servant,  in  embezzlement,  who  is,  98. 
Slander,  when  indictable,  174. 
Sodomy  defined,  210. 

how  punishable  at  common  law,  210. 
Solicitation,  an  attempt,  when,  29. 
Statute,  repeal  of,  pending  trial,  effect  of,  39  a. 

expiration  of,  39. 
Submission  distinguished  from  consent,  56,  61. 
Suicide,  criminal,  29. 

attempt  at,  punishable,  29. 
Swearing,  habitual,  at  common  law,  nuisance,  182. 
Swindling,  what,  84. 

Token,  cheating  by,  what,  83. 
Treason  at  common  law,  what,  211. 

high  and  petit,  211. 

defined,  212. 

levy  of  war  in,  213. 

insurrection  against  private  person  not,  213. 

misprision  of,  214. 

evidence  in,  215. 
Trespass,  forcible,  what,  120. 
Trial  by  jury,  after  demurrer,  38. 

Unlawful  assembly  defined,  203. 

Vessel  at  sea,  part  of  the  jurisdiction  of  the  sovereignty  under  whose 
flag  it  sails,  41. 

War,  levy  of,  what,  213. 
"  Wilfully,"  meaning  of,  178. 
Will,  against,  meaning  of,  195,  207. 
Witnesses,  in  perjury,  189. 
in  treason,  215. 


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